TO:
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David L. Boren |
Kenneth D. Rowe |
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Nancy L. Mergler |
Catherine Bishop |
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Joseph Ferretti |
Faculty Senate, Norman & HSC |
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Joseph Harroz, Jr. |
Staff Senate, Norman & HSC |
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Brian L. Maddy |
UOSA |
FROM: Jerry E. Jensen, University Equal Opportunity and Affirmative Action Officer
SUBJECT: Revisions to the Discrimination/Harassment Grievance Procedure
DATE: January 16, 2001
This is to transmit a revised version of the Grievance Procedure for Complaints Based Upon Discrimination, Sexual Harassment, Sexual Assault, Consensual Sexual Relationships, Retaliation or Racial and Ethnic Harassment for your review and comment.
We would like to place this revised procedure on the May 2001 Regent's Agenda, therefore we request that you return your comments to us by April 1, 2001. Numerous editorial changes have been made to clarify the procedure and make it easier to read. The following summarizes the substantive changes to the original document:
Thank you for your cooperation in this matter.
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PROPOSED REVISIONS IN
GRIEVANCE PROCEDURE FOR COMPLAINTS BASED UPON DISCRIMINATION, SEXUAL HARASSMENT, SEXUAL ASSAULT, CONSENSUAL SEXUAL RELATIONSHIPS, RETALIATION OR RACIAL AND ETHNIC HARASSMENT
(additions underlined; deletions crossed through)
A. Who May Use Procedure
The grievance procedure embodied herein shall be available to any person who, at the time of the acts complained of, was employed by, was an applicant for employment, or was enrolled as a student at the University of Oklahoma.
B. Filing of Complaint
Persons who have complaints alleging discrimination based upon race, color, national origin, sex, age 40 or above, religion, disability, or status as a veteran or complaints alleging sexual harassment, consensual sexual relationships, retaliation, or racial and ethnic harassment may shall file them in writing with the Equal Opportunity and Affirmative Action Officer, hereafter referred to as EO/AA Officer, or with their department head/chair, academic dean, director of student support services campus judicial coordinator, Vice Provost for Educational Services, or administrative supervisor. These individuals and the EO/AA Officer or the EO/AA Officer's designee are referred to as "Administrator."
Complainants who exercise their right to use this procedure agree to accept its conditions as outlined. Where multiple issues exist, (i.e. sexual harassment and violation of due process or grade appeal), the complainant must specify all of the grounds of the grievance of which the complainant should have reasonably known at the time of filing. A grievance filed under this procedure may normally not be filed under any other University grievance procedure. Depending on the nature of the issues involved, the complainant will be advised by the EO/AA Officer or his/her designee about the appropriate procedure(s) to utilize.
C. Timing of Complaint
Any complaint must be filed with the EO/AA Officer or other appropriate administrator within 180 calendar days of the act of alleged discrimination or harassment. All other time periods may be reasonably extended by the administrator. The administrator may reasonably extend all other time periods.
D. Administrative Action
E. Withdrawal of Complaint
The complainant may withdraw the complaint at any point during the investigation or prior to the adjournment of a formal hearing.
F. Confidentiality of Proceedings and Records
Investigators and members of the Hearing Panel are individually charged to preserve confidentiality with respect to any matter investigated or heard. A breach of the duty to preserve confidentiality is considered a serious offense and will subject the offender to appropriate disciplinary action. Parties and witnesses also are admonished to maintain confidentiality with regard to these proceedings.
All records, involving discrimination or harassment, upon disposition of a complaint, shall be transmitted to and maintained by the EO/AA Officer as confidential records except to the extent disclosure is required by law. This includes records of complaints handled by administrators.
G. Proceedings
1. Investigation
Upon receipt of a complaint, the EO/AA Officer or other appropriate administrator is empowered to investigate the charge, to interview the parties and others, and to gather any pertinent evidence. The investigation should be completed within 60 calendar days of receipt of the complaint, or as soon as practical. If a time period is extended for more than 10 calendar days, the EO/AA Officer will provide written or oral notice of reason for extension to all parties involved. The investigator shall prepare a written record of the investigation.
In arriving at a determination of a policy violation, at any stage of the proceedings, the evidence as a whole and the totality of the circumstances and the context in which the alleged incident(s) occurred shall be considered. The determination will be made from the facts on a case-by-case basis.
Upon completion of the investigation, the EO/AA Officer or other administrator is authorized to take the following actions:
a. Satisfactory Resolution
Resolve the matter to the satisfaction of the University and both the complainant and the respondent. If a resolution satisfactory to the University and both parties is reached through the efforts of the EO/AA Officer or other administrator, the administrator shall prepare a written statement indicating the resolution. At that time the investigation and the record thereof shall be closed.
b. Dismissal
Find that no policy violation occurred and dismiss the complaint, giving written notice of said dismissal to each party involved. Within 15 calendar days of the date of the notice of dismissal, the complainant may appeal said dismissal in writing to the EO/AA Officer by requesting a hearing according to the provisions of Section G.2. the section entitled "Hearing". If no appeal is filed within the 15 calendar day period, the case is considered closed.
c. Determination of Impropriety
(1) Make a finding of impropriety and notify the parties of the action to be taken. Either party has the right to appeal said determination in writing within 15 calendar days of the date of notice of determination to the EO/AA Officer by requesting a hearing according to the provisions of Section G.2. Within 15 calendar days of the date of the finding of impropriety, the party named in the finding as having engaged in impropriety may appeal said determination in writing to the EO/AA Officer by requesting a hearing according to the provisions of the section entitled "Hearing". If no appeal is filed within the 15 calendar day period, the case is considered closed.
(2) In the case of a complaint against a faculty member, the administrative investigator may determine that the evidence is sufficiently clear and serious so as to warrant the immediate commencement of formal proceedings as provided in the Abrogation of Tenure, Dismissal Before Expiration of a Term Appointment, and Severe Sanctions section of the Faculty Handbook. If the President concurs with the administrator's finding, the case may be removed at the option of the accused from the grievance proceedings contained herein and further action in the case shall be governed by the Abrogation of Tenure, Dismissal Before Expiration of a Term Appointment, and Severe Sanctions section in the Faculty Handbook. Otherwise, this policy and procedure shall apply.
2. Hearing
a. Request for a Hearing
(1) Appeals and complaints unresolved following an investigation may result in a hearing before a Hearing Panel selected from the membership of the Committee on Discrimination and Harassment as described below. For the Norman campus, faculty versus faculty grievances with multiple issues are heard by the Faculty Appeals Board the Faculty Appeals Board hears faculty versus faculty grievances. The request for a hearing is to be addressed to the EO/AA Officer.
(2) The request for a hearing must contain the particular facts and definitive reasons upon which the policy violation allegation request is based, as well as the identity of the appropriate respondent(s). A copy of the request shall be given to the proper respondent(s) by the EO/AA Officer. The EO/AA Officer shall give a copy of the request to the proper respondent(s).
(3) Written response to the request for a formal hearing must be sent to the EO/AA Officer within 10 calendar days of receiving notice that a hearing has been requested. A copy of the response shall be given to the party requesting the hearing.
b. Selection of a Hearing Panel
Within 10 calendar days following receipt of the written request for a hearing, the EO/AA Officer shall initiate the process to determine the members of the Hearing Panel who are to conduct a hearing. A five-member Hearing Panel will be chosen by the parties to the complaint selected by drawing from: on the Health Sciences Center, the twenty-four (24) member Committee on Discrimination and Harassment; and on the Norman Campus, from the sixteen (16) member Committee on Discrimination and/or the fifty (50) member Faculty Appeals Board. In the case of faculty versus faculty complaints on the Norman Campus, the five panel members will be drawn from the Faculty Appeals Board.
A Committee on Discrimination and Harassment shall be established on each campus and composed of: on the Health Sciences Center, eight (8) staff members, eight (8) students, and eight (8) faculty members; and on the Norman Campus, eight (8) staff members and eight (8) student members, with faculty representation being selected from the Faculty Appeals Board. On the Norman Campus, five (5) staff will be appointed by the Staff Senate will appoint five (5) staff and five (5) students will be appointed by UOSA; the President will appoint three (3) staff and three (3) students. At the Health Sciences Center, eight (8) faculty will be appointed by the Faculty Senate will appoint eight (8) faculty, eight (8) staff members appointed by the Employee Liaison Council, and eight (8) students by the Student Government Association. The terms of appointment shall be for three (3) years with initial terms of 1, 2, and 3 years in each category to provide the staggered membership, except that each student shall be appointed for a one-year term.
The selection process shall be in the following manner: the complainant and the respondent alternately select two names each from the pool. Those selected choose a fifth name from the pool to serve as chair. If the four panelists cannot agree on the fifth, the names of five additional Committee members will be drawn by lottery. Each panelist will strike one name off the list of five names. The remaining person shall be the fifth panelist. The EO/AA Officer or his/her designee shall preside at a drawing to determine the members of the Hearing Panel. The drawing shall be from the pool of names as outlined above. Names of persons shall first be removed from the pool who; (1) have direct involvement or knowledge of the incident involved; (2) are employed in the same budget unit; and (3) are related to either party in the grievance. The remaining names shall be placed in a container, and the drawing shall be made to determine the five members who are to serve on the Hearing Panel. Prospective panel members who have been determined by the drawing shall be asked to disqualify themselves should there be any possibility of their having a biased opinion concerning the grievance. For example, a close friend shall disqualify himself/herself. When, for any reasons, prospective panel members disqualify themselves, additional names shall be drawn from the container until a full panel is constituted. Either party to the complaint may ask the EO/AA Officer to disqualify any member of the Hearing Panel upon a showing of cause. Furthermore, no panelist shall be expected to serve if he/she feels that a conflict of interest exists. Replacements shall be selected in the same manner as the original panel.
c. Pre-Hearing Orientation Conference
Within 10 calendar days of receiving notification, or as soon as practical, the Chair EO/AA Officer shall convene the Hearing Panel for an informal discussion of the grievance and a decision as to whether there exist adequate grounds for a hearing orientation conference. The parties involved and the EO/AA Officer shall be present during the informal discussion. The panel shall select a Chair of the Hearing Panel (hereafter referred to as the Chair) from the group of five Hearing Panel members. Prior to the informal discussion At the beginning of the conference, the EO/AA Officer shall conduct an orientation for the panel members. Each panel member shall be given a copy of the written complaint, the request for a hearing, and the written response. No witnesses or evidence or evidence will be heard during the orientation conference. After the selection of a Chair and after the orientation is delivered to the panel members, the EO/AA Officer shall be excused. At that time the Hearing Panel will confer in private and reach a decision as to whether there exist adequate grounds for a hearing.
At all meetings, each party may be accompanied by an adviser. In the event that a party chooses to be advised by an attorney he/she may do so at his/her expense. If an adviser is used, the name of the person so assisting must be furnished to the Panel and the other party 10 calendar days in advance of the pre-hearing conference. Advisers may advise their clients at the pre-hearing conference but may not directly address the Hearing Panel.
If the Panel decides at its pre-hearing orientation conference that there is no basis for a hearing, it shall report the determination in writing to the proper executive officer with a copy to the President and the EO/AA Officer. The executive officer shall render his or her decision on the matter in writing to each of the parties involved in the informal proceedings.
d. Informal Hearing
In the event the Hearing Panel determines that there is a basis for a hearing, the Chair shall convene the panel for an informal hearing. Each panel member shall be given a copy of the Hearing Guidelines. The parties involved will be present at the informal hearing. No witnesses will be heard.
The Chair of the Hearing Panel shall notify the parties of the date, time and location of the informal hearing. The hearing shall be scheduled to reasonably ensure that the complainant and respondent are able to participate.
Upon request of the Chair, Legal Counsel may serve as an adviser to the Hearing Panel.
At all meetings, an adviser may accompany each party. In the event that a party chooses to be advised by an attorney he/she may do so at his/her expense. If an adviser is used, the name of the person so assisting must be furnished to the Panel and the other party 10 calendar days in advance of the hearing conference. Advisers may advise their clients but may not directly address the Hearing Panel.
In the event the matter is resolved to the satisfaction of all parties prior to the formal hearing, a written statement shall indicate the agreement recommended by the parties and shall be signed and dated by each party and by the Chair. The recommendation will be referred to the appropriate executive officer for final determination.
In the event the panel by a majority vote decides at the informal hearing that there is no basis for a formal hearing, it may recommend that the grievance be dismissed. The panel shall report the recommendation in writing to the appropriate executive officer, with a copy to the President and the EO/AA Officer. The executive officer shall render his or her decision on the matter in writing to each of the parties involved in the informal hearing.
d. e. Formal Hearing Guidelines
The panel shall be convened by the EO/AA Officer for further orientation prior to the formal hearing. Each panel member shall be given a copy of the Hearing Guidelines.
In the event that the panel determines the need for a formal hearing, the Chair will convene the panel and the parties for a formal hearing. The Hearing Panel procedures in conducting a hearing shall be established with reference to the Hearing Guidelines and shall provide that the parties may present all of the evidence that they consider germane to the determination. Further, the parties may call witnesses to testify and may cross-examine witnesses called by the other party. The hearing shall be closed unless all principals in the case agree to an open hearing. Audio tape recordings of the proceedings shall be arranged by the Chair of the Hearing Panel and paid for by the University. Transcripts may be charged to the requesting party. In cases of alleged sexual assault on students, the accuser and the accused are entitled to the same opportunities to have others present during a campus disciplinary proceeding and both shall be informed of the outcome of the proceeding.
After the pre-hearing conference, if a party wishes to have an adviser present at any stage of the hearing he/she must notify the Hearing Panel Chair and other party(ies) that an adviser has been retained at least 10 calendar days in advance of the scheduled hearing. Advisers may advise their clients at the hearing but may not directly address the Hearing Panel or witnesses, except as required for student disciplinary hearings leading to suspension or expulsion.
The Chair of the Hearing Panel shall notify the parties of the date, time and location of the formal hearing. Parties are responsible for giving such notice to their witnesses. The hearing shall be scheduled to reasonably ensure that the complainant, respondent, and essential witnesses are able to participate.
Upon request Legal Counsel may serve as an adviser to the Hearing Panel.
e. Satisfactory Resolution Prior to Hearing Completion
In the event the matter is resolved to the satisfaction of all parties prior to completion of the formal hearing, a written statement shall indicate the agreement recommended by the parties and shall be signed and dated by each party and by the Chair of the Hearing Panel. The recommendation will be referred to the appropriate executive officer for final determination.
f. Panel's Findings and Recommendations
In the event that no solution satisfactory to the parties is reached prior to the completion of the formal hearing, the Panel shall make its findings and recommendations known to the proper executive officer, with copies to the President and the EO/AA Officer. The Panel's report, with its findings and recommendations, shall be prepared and properly transmitted within seven (7) calendar days after conclusion of the formal hearing.
g. Executive Officer's Decision
Within 15 calendar days of receipt of the Hearing Panel's findings and recommendations, the proper executive officer shall inform the complainant and the respondent of the findings of the Hearing Panel and the officer's decision. A copy of the officer's decision shall be transmitted to the Chair of the Hearing Panel, with copies to the President of the University and the EO/AA Officer. In a case investigated initially by an administrator, the administrator also shall be informed of the officer's decision. In the event the allegations are not substantiated, reasonable steps in consultation with the accused may be taken to restore that person's reputation.
h. Appeal to the President
The executive officer's decision may be appealed to the President within 15 calendar days of being notified of prospective action or of action taken, whichever is earlier. If the President does not act to change the decision of the executive officer within 15 calendar days of receiving the appeal, the decision of the executive officer shall become final under the executive authority of the President.
To contact the Equal Opportunity and Affirmative Action OfficeAffirmative Action Office:
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Norman Campus |
Health Sciences Center |
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Evans Hall, Suite 102 |
Service Center Building, Room 113 |
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325-3546 |
271-2110 |
(Regents, 9-27-95, 1-14-97)