A-to-Z Index

Policy #1324
Discrimination and Harassment Complaint Procedures

Date of Current Revision: December 2002
Responsible Office: Office of Affirmative Action
  1. PURPOSE

    This policy provides procedures for university community members to file internal complaints alleging discrimination or harassment against instructional, administrative or professional faculty members. Procedures for complaints filed against students can be found in the JMU Student Handbook. Procedures for complaints filed against classified staff members can be found through the Office of Human Resources.

  2. AUTHORITY

    The JMU Board of Visitors has the authority to enact policies for all university community members. In cases where the board has not exercised that authority, it is delegated to the president.

  3. DEFINITIONS

    Affirmative Action Officer or AAO:
    The person the president has charged with administering this policy and procedure.

    Complainant:
    A university community member who files a complaint under this policy.

    Complaint:
    The signed and written document required to file a complaint under this policy.

    Complaint Commencement Date:
    The date on which the complainant provides the AAO with the written and signed complaint.

    Day:
    A calendar day. When the end of a specified period of days falls on a weekend or on a day when classes are not scheduled , that period shall be deemed to end on the next scheduled class day. (Example: A specified time period will not end during spring break or on any day between the end of the last summer session and the first scheduled class day of the fall semester. The specified time period will be continued until the next official class day.)

    Discrimination:
    To take an adverse action or provide unequal treatment based on a person's age, color, disability, marital status, national origin, political affiliation, pregnancy, race, religion, sex or veteran status when such action deprives a person of a privilege or right (such as a benefit, an equitable evaluation, a grade, a position or a promotion), or otherwise adversely affects the person.

    Harassment:
    A form of discrimination consisting of unwelcome offensive physical, verbal or written conduct that shows aversion or hostility toward a person on the basis of age, color, disability, marital status, national origin, political affiliation, pregnancy, race, religion or sex or veteran status in the following situations:

    1. When submitting to or rejecting the conduct is made the basis for a personnel action or an action affecting a student, or a recommendation for a personnel action (such as hiring, promoting or salary adjustment), or an action affecting a student (such as admission or retention), or evaluation (such as promotion, tenure, compensation or work condition adjustment of an employee or grading of a student).
    2. When the conduct has the purpose or affect of unreasonably interfering with the performance of an employee or a student.
    3. When the conduct creates a hostile, intimidating or offensive learning or working environment.

    Hearing Panel:
    The group of individuals chosen by the University Complaint Officer from the University Hearing Board to hear a specific complaint.

    Respondent:
    A university community member who is an instructional, administrative or professional faculty member, and against whom a complaint under this policy is filed.

    Retaliation:
    Overt or covert acts of discrimination, harassment, interference, intimidation, penalty, reprisal or restraint against a group or individual exercising rights under this policy. Retaliation shall be deemed to constitute harassment and, therefore, will be considered a separate violation of this policy.

    University Complaint Officer or UCO:
    The individual designated by the AAO to chair a hearing under this policy. A pool of individuals is appointed each year by the AAO to serve as potential university complaint officers, and the UCO in a specific case is chosen from this pool.

    University Community Member:
    An individual affiliated with the university in one or more of the following full- or part-time capacities:
    • Administrative and professional faculty member
    • Classified employee or other employee (such as wage or part time)
    • Instructional faculty member
    • Student (graduate or undergraduate)

    University Hearing Board or UHB:
    A pool of university community members appointed each year by the AAO and from which a panel is chosen by the UCO to hear a complaint filed under this policy.

  4. APPLICABILITY

    This policy applies when a member of the university community ('complainant') believes that he or she has been subjected to harassment or discrimination by an instructional, administrative or professional faculty member ('respondent'), provided that at least a substantial portion of the alleged wrongful behavior either occurred on university-controlled, university-leased or university-owned property, or otherwise had a significant connection to the activities of the university.

    A person who is not a member of the university community but who was a member when at least a substantial portion of the alleged wrongful behavior occurred is eligible to be a complainant. A complaint filed against a respondent who is no longer a university community member will be dismissed by the affirmative action officer.

  5. POLICY

    The university is committed to providing faculty members, staff members and students a work and study environment that is free from discrimination or harassment based on protected criteria. Conduct that constitutes discrimination or harassment is a violation of university policy and is sanctionable. Any member of the university community who is subjected to discrimination or harassment may bring an internal complaint to attempt to redress the situation.

  6. PROCEDURES

    6.1 Informal Resolution Attempts
    1. Before bringing a complaint to the affirmative action officer, the complainant is encouraged to discuss the complaint with the respondent to attempt to resolve it. If the complainant does not feel comfortable discussing the matter directly with the respondent, the complainant is encouraged to discuss the matter promptly with any of the following university resources:
      • The affirmative action officer
      • The complainant's supervisor
      • A Counseling and Student Development Center staff member
      • An Office of Human Resources staff member
      • The ombudsperson
      • The respondent's supervisor
      • The sexual assault education coordinator
      • Another university official who the complainant believes to be an appropriate adviser given the nature of the situation (i.e., a coach, a faculty mentor, a residence hall adviser, etc.)

      Any university official contacted by a complainant is encouraged to communicate the general nature of the matter to the AAO, if necessary without disclosing the identities of the parties, to assist the AAO in developing effective campus educational programs.

    2. If the complainant asks that the information disclosed be kept confidential, the university official contacted informally by the complainant must determine whether to keep the information confidential or whether it must be communicated to the AAO to protect the university. However, in cases involving allegations of conduct that constitute sexual harassment, the university official contacted has an affirmative duty to disclose the information to the AAO or other appropriate university office and does not have the discretion to keep the disclosed information confidential. Individuals who have disclosed information concerning sexual harassment should be informed that such information will not be kept confidential.

    3. If any discussions between the complainant and the respondent or between the complainant and any other university official do not lead to a resolution that is satisfactory to the complainant, or if such discussions do not take place, the complainant should contact the AAO not later than 30 days after the last behavior date. The AAO will discuss with the complainant the procedures that will be followed with respect to any ensuing investigation, resolution attempts and hearing.

    4. If the complainant decides to file a complaint, the AAO may, with the permission of the complainant, contact the respondent and attempt to help bring about a resolution. The AAO may suggest that the complainant and the respondent participate in mediation, but participation is not mandatory. Mediation is entirely voluntary, and failure to participate in mediation shall not be considered adversely against either the complainant or the respondent in any ensuing investigation or hearing.

    6.2 Complaint Process
    1. The complaint must be filed by the complainant not later than 60 days after the last behavior date by providing the affirmative action officer with a signed, written document detailing the allegations, naming the respondent and providing as much detail as possible about the charges. The AAO may extend this period by up to 30 days if an informal resolution is in progress. A complaint may not be filed anonymously or on behalf of another person. The AAO will confirm the complaint commencement date with the complainant in writing.

    2. Upon receipt of the complaint, the AAO shall determine whether this policy applies. A decision by the AAO that this policy does not apply is final and may not be appealed. By way of example, the AAO shall find that this policy does not apply upon determining any of the following:
      • That even if the complainant's allegations are true, the respondent's conduct would not constitute harassment or discrimination as defined in this policy
      • That the alleged conduct did not occur on university-owned, university-leased or university-controlled property or did not otherwise have a significant connection to the activities of the university
      • That the complainant or respondent is not a university community member
      • That the complaint was not timely filed
      • That the complainant was not the party harmed by the discrimination or harassment.
      This list is not exclusive, and other situations may result in the AAO determining that the policy does not apply.

    3. If the AAO determines that this policy applies, the AAO shall conduct an investigation of the complaint in any manner the AAO deems appropriate. Not later than 15 days after the complaint commencement date, the AAO shall provide the appropriate vice president with authority over the respondent, the complainant and the respondent with a written report of the AAO's actions and findings; the report may also include the AAO's opinion on whether the evidence justifies a preliminary finding by the AAO that the respondent violated this policy. Any such preliminary finding is not binding in any subsequent hearing.

    4. If the AAO finds that the evidence does not justify such a preliminary finding of violation, the AAO will dismiss the complaint. A decision by the AAO that the evidence does not justify such a preliminary finding of violation may be appealed by the complainant to the appropriate vice president within five days by presenting a written appeal detailing the reasons the decision should be overturned. If no appeal is timely filed, the complaint will be dismissed, and the complainant, respondent and vice president will be notified. If an appeal is timely filed, the vice president will decide whether to direct the AAO to appoint a university complaint officer. The vice president's decision on whether to direct the appointment of a UCO is final and may not be appealed.

    5. If the AAO finds that the evidence justifies such a preliminary finding of violation, the AAO will notify the vice president, the complainant and the respondent that he intends to appoint a UCO to conduct a hearing. A decision by the AAO that the evidence justifies such a preliminary finding of violation may be appealed by the respondent to the appropriate vice president within five days by presenting a written appeal detailing the reasons the decision should be overturned. If no appeal is timely filed, the complaint will be referred to a UCO appointed by the AAO. If an appeal is timely filed, the vice president will decide whether to direct the AAO to appoint a UCO. The vice president's decision on whether to direct the appointment a UCO is final and may not be appealed.

    6. If the AAO appoints a UCO, the AAO will notify the the complainant and the respondent of the appointment. As soon as reasonably possible, the AAO shall provide the AAO's written report to the designated UCO, who shall select Hearing Panel members from the University Hearing Board and provide them with copies of such report.

    6.3 The Hearing:
    1. Hearing Panel Composition
      The Hearing Panel shall consist of three voting members selected by the designated UCO from the University Hearing Board. There must be at least one voting member from the complainant's classification and at least one from the respondent's classification. The UCO shall provide the names of Hearing Panel members to the complainant and the respondent at least seven days prior to the scheduled date of the hearing. The UCO shall serve as nonvoting chair of the Hearing Panel, but shall not be present during Hearing Panel deliberations. Any potential Hearing Panel member may refuse to serve or may recuse himself or herself for any reason (including close relationship with the complainant or respondent). The complainant and the respondent shall each have the right to cause the UCO to remove one member of the Hearing Panel without having to provide any reason by providing written notice to the UCO at least four days prior to the scheduled hearing date. In addition, either the complainant or respondent may request that the UCO remove any Hearing Panel member by providing a valid reason in writing. If the designated UCO determines that any such request is reasonable, the request shall be granted. In the case of any such refusal, resignation or removal, the UCO shall promptly appoint another UHB member as a substitute Hearing Panel member.

    2. Hearing Date
      The hearing should commence within 45 days of the complaint commencement date. However, circumstances (such as the unavailability of witnesses or requests to remove Hearing Panel members) may cause a delay, and such delay shall not constitute grounds for an appeal.

    3. Hearing Procedures
      To the greatest extent possible, the hearing shall be conducted in an informal manner. The objective of the hearing is to facilitate the understanding of the facts by the Hearing Panel. It is not intended that either party be surprised at the hearing by the appearance or testimony of any witness. Therefore, the designated university complaint officer may require that the respondent, the complainant and the affirmative action officer provide written pre-hearing statements to the Hearing Panel and the other parties, setting forth the names of witnesses and the nature of their anticipated testimony. The AAO will participate in the hearing to the extent requested by the complainant, the respondent or the UCO. Rules of evidence that a court would use will not apply. The Hearing Panel may consider testimony presented in different ways (e.g., by sworn affidavit, telephone or video). Although attorneys may not participate actively in the hearing, an attorney may accompany and advise either party during the hearing. The hearing will be closed to the public unless both the respondent and the complainant agree otherwise. Any procedural questions will be decided by the UCO, who may, but is not required to, ask for input from the Hearing Panel and/or the AAO. An audio recording or written transcript will be made of the hearing; however, hearing deliberations will be held in private and will not be recorded.

    4. Hearing Panel Findings and Recommended Sanctions
      If after deliberation a majority of Hearing Panel members do not determine that a preponderance of probative, reliable and substantial evidence justifies a finding that the respondent has violated the policy prohibiting harassment or discrimination, the complaint shall be terminated. The Hearing Panel will notify the UCO, who will notify the complainant, the respondent, the appropriate vice president, and the AAO. The Hearing Panel's decision to terminate the complaint may not be appealed.

    5. Determination of Sanctions
      If a majority of Hearing Panel members determine by a preponderance of probative, reliable and substantial evidence that the respondent violated this policy, the Hearing Panel shall then determine what sanction should be recommended. The severity of the sanction shall be based on the Hearing Panel's assessment of the nature of the violation - for example, the existence of aggravating circumstances would justify a more severe sanction. Recommended sanctions must be approved unanimously by Hearing Panel members. Failure to reach a unanimous recommendation on the appropriate sanction will result in a finding going forward with no recommended sanction.

    6. Written Findings and Recommendations
      The Hearing Panel (without participation by the designated UCO) shall prepare its written findings and recommendations, including the reasons for its decisions, within 10 days after the hearing. The Hearing Panel's written findings and recommendations shall be promptly provided to the complainant, the respondent and the UCO, with a copy to the appropriate vice president.

    7. Appeal to the Vice President
      The respondent shall have the right to appeal a finding of harassment or discrimination, or the severity of the recommended sanction by providing a written statement of appeal to the appropriate vice president within 10 days of being sent a copy of the Hearing Panel's findings and recommendations. The grounds of the appeal are limited to the following:
      • New evidence that was not reasonably available to the respondent until after the hearing;
      • The respondent was denied due process because of failure to follow the procedures set forth in this policy, and such failure affected the outcome in a manner detrimental to the respondent.

      The vice president will review the respondent's appeal statement and any other documentation the vice president elects to review and shall provide a copy of the appeal statement to the complainant, who shall have five days to respond. The vice president may, at the vice president's discretion, also review evidence, speak to the complainant, the respondent, any witness, any Hearing Panel member or the AAO, or consult with any other person within or outside the university community. The vice president shall render a decision within 20 days of receipt of the appeal. This decision may be one of the following four actions:
      • Affirm the finding of the Hearing Panel in its entirety.
      • Affirm the finding of the Hearing Panel that harassment or discrimination occurred, but modify the recommended sanction by making it either less or more severe.
      • Direct that a new hearing take place (in which case the AAO shall select a different UCO and the new UCO shall select a different Hearing Panel from the University Hearing Board).
      • Reverse the Hearing Panel's finding that harassment or discrimination occurred, in which case the complaint shall be terminated. The decision of the vice president to terminate the complaint may not be appealed.

      The vice president shall provide copies of the decision to the AAO, the UCO, the complainant, the Hearing Panel members and the respondent. The decision of the vice president may not be appealed, except as set forth in section 6.3.h. The vice president will notify the president of the decision and any sanctions to be imposed on the respondent.

    8. Imposition of Sanctions
      In the case of an appeal under 6.3.i, the vice president shall not effect imposition of sanctions until the president has made the final determination. The respondent shall be notified of the imposition of sanctions by the appropriate vice president.

    9. Possible Final Appeal to the President
      If, after appealing to the vice president, the sanction imposed by the vice president is dismissal or expulsion of the respondent, the respondent may request that the president modify the sanction. The respondent may not challenge the finding that harassment or discrimination occurred. Any such request to modify the sanction must be made in writing and delivered to the president not later than 10 days after the respondent has sent a copy of the decision to the vice president. The president shall render a decision within 20 days of receiving a written request for appeal from the respondent. The president shall provide a copy of the decision to the vice president and AAO. The AAO shall then provide the president's decision to the complainant, the Hearing Panel, the respondent and the UCO. The president's decision is final and may not be appealed.

    10. Exceptions to Provisions
      It is not intended that the outcome of a complaint be determined by a nonsubstantial procedural violation. Therefore the AAO, the UCO, the vice president or the president may make exceptions to the provisions (including time deadlines) of this policy; provided, however, that any exception is intended to bring about a just outcome, is relatively minor in nature and does not unreasonably adversely affect another participant in the process.

    11. Confidentiality, Other Consequences
      All participants in all proceedings under this policy will observe confidentiality to the extent reasonably possible. However, in the event of any final determination of a violation of this policy, the vice president will provide appropriate information to appropriate university officials. The university may also use any information obtained in the proceedings to defend itself against any claims, complaints or allegations brought against it.

    12. Education
      The AAO will provide educational materials to University Hearing Board members and to the pool of potential UCO's in order to enable them to better fulfill their responsibilities under this policy.

    13. Guide
      The document attached to this policy as "Exhibit A" is intended as a guide to assist university community members understand the basic provisions of this policy. However, that document is not part of this policy, and the provisions of this policy will prevail in the event of any inconsistency or ambiguity between that document and this policy.

  7. RESPONSIBILITIES

    University community members are expected to not discriminate or harass other university community members and are responsible for reporting allegations of conduct that would constitute sexual harassment to the AAO and for abiding by the terms of this policy.

    The AAO is responsible for appointing the members of the UCP and the pool of UCO candidates, receiving complaints, attempting to resolve complaints with the permission of the complainant, investigating in appropriate cases, determining the applicability of this policy to specific complaints, notifying the appropriate vice president of complaints and for disseminating information as provided in this policy.

    The UCO is responsible for impaneling the Hearing Panel and for chairing the hearing on a specific complaint. The Hearing Panel is responsible for hearing the complaint and rendering findings and recommendations on sanctions.

    The appropriate vice president is responsible for making decisions on all complaints filed against members of the university community under their jurisdiction, and for the imposition of sanctions.

    The president is responsible for hearing appeals on sanctions imposed under this policy.

  8. SANCTIONS

    Sanctions will be commensurate with the severity and/or frequency of the offense and may include termination of employment.

  9. EXCLUSIONS

    9.1This policy does not provide procedures for complaints filed against students. Any allegation of harassment or discrimination against a student (including in the student's capacity as a university employee) should be reported to the Office of Judicial Affairs for disposition pursuant to the Student Judicial System as set forth in the JMU Student Handbook.

    9.2 This policy does not provide procedures for complaints filed against classified employees. Any allegation of harassment or discrimination against a classified employee should be reported to the Office of Human Resources for disposition pursuant to the applicable procedures, performance standards, rules and regulations that apply to classified employees at the university.

    9.3 Any finding of harassment or discrimination against an instructional faculty member that results in the decision by the vice president to impose a sanction against the faculty member is subject to appeal procedures pursuant to the terms of the JMU Faculty Handbook, Section III.A.10.g.

    9.4 Even if an allegation of harassment or discrimination is one of the exclusions from the scope of this policy, any affected person may discuss it with the affirmative action officer.

  10. INTERPRETATION

    The authority to interpret this policy rests with the president and is generally delegated to the affirmative action officer.
Last Revised: June 25, 2001

Approved:
December 2002
Linwood H. Rose, President
Index Terms

Affirmative Action Officer
Discrimination
Harassment
Sexual Harassment