Discrimination, Harassment and Retaliation Policy; Supercedes EM 99-024; Superceded by 15-012

From: Paul J. Zingg, President

Subject: Policy Prohibiting Discrimination, Harassment and Retaliation for Reporting Harassment or Participation in a Harassment Investigation and Procedure for Employees Not Eligible to File a Complaint or Grievance under a Collective Bargaining Agreement or Whose Collective Bargaining Agreement Incorporates the CSU Systemwide Complaint Procedure; Supersedes EM 99-024, 99-020, 98-054, and 95-022; Superceded by 15-012.

STATEMENT OF POLICY

California State University, Chico is committed to maintaining a work environment where every employee (Faculty, Staff, and MPP), applicant, and independent contractor is treated with dignity and respect. CSU, Chico will not tolerate unlawful discrimination, harassment, and/or retaliation on the basis of race, religion, ancestry, color, sex, sexual orientation, gender identity, gender expression, genetic information, age (40 and older), disability, veteran status, marital status, pregnancy, medical condition and/or national origin, under any program of the University.

The goal of this policy is to create and preserve the learning and working environment conducive to growth in mind, spirit, and human community. Discrimination and harassment subvert the mission of the University by interfering with academic or work performance; by creating an atmosphere of intimidation and hostility; and by undermining respect for the University, the individuals who constitute its community, and its degrees and scholarship.

Individuals covered within the scope of this Executive Memorandum who believe they have been subjected to a violation of this Executive Memorandum should promptly report it as provided in Section III of this Policy.

CSU, Chico will respond to all complaints brought to its attention in a timely and appropriate manner. If the complaints have merit, CSU, Chico will promptly take appropriate action. In determining whether the conduct at issue violates this policy, the totality of the circumstances shall be considered.

Individuals are not to be deterred from reporting allegations of discrimination, harassment or retaliation covered by this Policy. CSU, Chico will not retaliate, nor it will tolerate retaliation for filing complaints filed based on a good faith belief there has been discrimination, harassment or retaliation.

DEFINITIONS

1. "Applicant" refers to an individual who has completed the application process for a specific, available position at CSU, Chico.
2. "Complainant" refers to an employee, applicant, or Independent Contractor who is eligible to file, and/or has filed a discrimination, harassment or retaliation complaint.
3. "Complaint" refers to a written formal allegation filed by a Complainant alleging a violation of EM 12-043 alleging discrimination, harassment or retaliation).
4. Disability - A person with a "disability" is a person who:
   1. Has a physical or mental impairment which limits one or more major life activities; or
   2. Has a record of such an impairment; or
   3. Is regarded as having such impairment.
5. "Discrimination complaint officer" refers to the individual assigned to handle the complaint.
6. "Employee" includes all full or part-time CSU employee, whether permanent, tenured, probationary, temporary, intermittent, casual, or Management Personnel Plan employee.
7. Harassment occurs when unwelcome conduct is engaged in because of a protected status of an individual, which includes race, ancestry, color, sex, religion, age, sexual orientation, gender identity, gender expression, genetic information, disability, veteran status, marital status, pregnancy, national origin, and/or medical condition, and:
   1. Submission to such conduct is made, either explicitly or implicitly, a term or condition of an individual's appointment/employment, admission, enrollment, evaluation, grading, or participation in any university-sanctioned activity;
   2. Tolerance of, submission to or rejection of such conduct is used as the basis for a personnel decision or academic evaluation including benefits, services, honors, grades, or program activities or threatened to be used as the basis for employment or assessments affecting an individual; or
   3. Such conduct is so severe or pervasive that its effect, whether or not intended, is a work environment that could be considered by a reasonable person to be interfering with an individual's work or academic performance or creating an intimidating, hostile, or offensive working or learning environment.
8. Harassment can be written (in print or electronically), verbal, visual, or physical. Examples of harassment include:
   1. Written communications, such as sending inappropriate jokes or comments in print or by email;
   2. Verbal communications, such as making graphic or degrading comments about an individual and/or his or her body or personal characteristics, or using epithets, derogatory comments or slurs;
   3. Physical acts, such as unwanted touching, physical interference, or even assault;
   4. Visual acts or displays, such as derogatory cartoons, drawings, or posters, or inappropriate gestures.
   5. Making unwelcome sexual advances or propositions, or offering employment benefits or giving preferential treatment in exchange for sexual favors;
   6. Making or threatening reprisals after a negative response to unwelcome conduct.
   7. A single incident of sufficient severity may constitute sexual harassment. In determining whether a specific act or pattern of behavior violates this policy, all of the circumstances surrounding the conduct will be considered.
9. "Independent Contractor" refers to "a person providing services pursuant to a contract." As defined by the Fair Employment and Housing Act, "a person providing services pursuant to a contract" is a person who meets all of the following criteria:
   1. The person has the right to control the performance of the contract for services and discretion as to the manner or performance.
   2. The person is customarily engaged in an independently established business.
   3. The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer's work.
10. "Investigator" refers to the person who conducts an investigation under this EM. It may be the discrimination complaint officer or designee. This person shall be an MPP employee or an external consultant who is not within the administrative control or authority of the person alleged to have discriminated or retaliated. All investigations under this EM shall be conducted in a reliable and impartial manner.
11. "Medical Condition" means:
    1. A health impairment related to a diagnosis of cancer or a record or history of cancer; or
    2. A genetic characteristic that is known to cause a disease or disorder, or to statistically increate the risk of developing a disease or disorder, but currently is not manifested in any symptoms of the disease or disorder.
12. "Representative" refers to a union representative of the Complainant's collective bargaining units, or another individual who may serve as a representative of an employee entitled to such representation.
13. "Respondent" refers to the individual who has a complaint filed against him/her.
14. The terms "Respond" or "File" refer to personal delivery or deposit in the U.S. Mail, certified with return receipt requested. If personal delivery is used, the calendar date of delivery shall establish the date of response or filing. If certified mail delivery is used, the postmark shall establish the date or response or filing.
15. "Sex" includes, but is not limited to: the victim's actual sex; the harasser's perception of the victim's sex; the harasser's perception of the victim's identity, appearance, or behavior, whether or not that identity, appearance, or behavior is different from that traditionally associated with victim's sex at birth; and pregnancy; childbirth; or medical conditions related to pregnancy or childbirth.

VIOLATIONS OF THIS POLICY

To assert a violation of this Policy employees, applicants, and independent contractors must follow the employee complaint procedure, that can be found on the Human Resources Service Center Website.

1. Employee complaints should be filed with the Human Resources Service Center at (530) 898-6771, Kendall Hall 222.
2. Applicant complaints should be filed with the Human Resources Service Center at (530) 898-6771, Kendall Hall 222.
3. Independent Contractor complaints should be filed with Procurement at (530) 898-5134, Kendall Hall 206.

PROCEDURE

1. Violation - Complainants as defined in 12-043 who utilize this procedure must assert:
   1. A violation of CSU's systemwide policies or CSU, Chico's policy against discrimination, harassment, and retaliation; and/or
   2. The specific harm resulting from the alleged violation.
2. Informal Inquiry (optional)
   1. Prior to or instead of filing a Formal Level I complaint under section V.B. of this procedure a Complainant may seek to meet with the discriminations complaint officer responsible for administering the CSU, Chico nondiscrimination and nonretaliation policy, to determine the nature of the complaint and to explore a resolution of the complaint. The Complainant must be given information on how to file a formal complaint during this meeting.
   2. The Complainant should request this meeting no later than twenty (20) days after the event giving rise to the complaint or no later than twenty (20) days after the Complainant knew or reasonably should have know of the events giving rise to the complaint. The Complainant and discrimination complaint officer should meet as soon as possible thereafter, but no later than fourteen (14) days after the Complainant has requested the meeting.
   3. An employee may have a representative present during the discussion of the complaint with the discrimination complaint officer.
   4. Whenever possible, the discrimination complaint officer shall attempt to resolve the complaint at the Informal Level. A resolution at the Informal Level shall be documented.
   5. The discrimination complaint officer may decide an informal resolution is inappropriate and/or the circumstances described by the Complainant warrant investigation. The discrimination complaint officer should invite the Complainant to file a Formal Level I complaint pursuant to section II.B. of the EM if the discrimination compliant officer concludes that an investigation is warranted.
   6. If the Complainant decides to file a Formal Level I complaint, the investigation shall be conducted pursuant to section II.C. of this EM.
   7. If the discrimination complaint officer concludes that an investigation is warranted but the Complainant declines to file a Formal Level I complaint at this time, the investigation shall nevertheless be conducted.
   8. The discrimination complaint officer shall respond to the Complainant no later than sixty (60) days after the meeting is held, unless an extension of the timeline has been obtained.
3. Formal - Level I
   1. A Complainant may enter the Level I procedure in one of three ways:
      1. By filing a Level I complaint that was not preceded by an Informal Inquiry investigation.
      2. By filing a Level I complaint at the invitation of the discrimination complaint officer who, having discussed the allegations with the Complainant as an Informal Inquiry, determined that an investigation is warranted; or
      3. In response to the results of an Informal Inquiry investigation initiated by the discrimination complaint officer with which the employee disagrees.
   2. In the first two instances, an employee may file a Level I complaint with the discrimination complaint officer no later than:
      1. Thirty (30) days after the event giving rise to the complaint; or
      2. Thirty (30) days after the employee knew or reasonably should have know of the event giving rise to the complaint.
   3. If the complaint is filed in response to the results of an Informal Inquiry Investigation by the discrimination complaint officer with which the employee disagrees, it must be filed no later than ten (10) days after being notified of the results of the investigation.
   4. If the Complainant chooses to file a Level I complaint, he/she shall either complete the complaint form provided by CSU, Chico or submit a signed statement containing all of the information below:
      1. The Complainant's name, address, home and work phone numbers, and job title and classification if the Complainant is an employee. If the Complainant is an Applicant, state the classification applied for and the date of the application. If the Complainant is an Independent Contractor, provide the date of the contract and department that hired the Independent contractor.
      2. The grounds or basis of the discrimination allegation (e.g., race, sex, age)
      3. A detailed description of the factual events giving rise to the complaint.
      4. The specific harm resulting from the violation.
      5. If applicable, the reasons why the investigation conducted did not resolve the issue.
      6. The name, address and telephone number of the representative, if any.
      7. The date the formal complaint was filed.
      8. The Complainant's signature.
   5. If the allegations contained in the complaint have not previously been evaluated to determine whether an investigation is warranted, the discrimination complaint officer shall do so.
   6. If an investigation is deemed not warranted, the discrimination complaint officer shall respond to the Complainant in a timely manner, explaining why no investigation is being conducted.
   7. If an investigation is deemed warranted, the investigator shall hold a meeting with the Complainant and the Complainant's representative, if any, at a mutually acceptable time and location.
   8. The Complainant shall inform the investigator of all issues and evidence known, of which could reasonably be known, to the Complainant that are related to the complaint. If an investigation was conducted prior to the Level 1, the Complainant shall discuss the specific disagreements with such findings and the relevant reasons and evidence. The Complainant may present no additional issues after Level I.
   9. The investigator shall carefully review the issues raised by the Complainant and conduct an investigation pursuant to this EM. Where an investigation has already been conducted, the Level I investigation should be limited in scope to the Complainant's specific disagreements with the findings.
   10. The discrimination complaint officer shall respond to the Complainant no later than sixty (60) days after the Level I filing, unless an extension of the timeline has been obtained.
   11. Generally, the Level I response should include a summary of the allegations, a description of the investigative process, the standard used to determine whether a violation of EM occurred, the evidence considered and a determination of whether the allegations were substantiated. In addition, the response shall inform the Complainant of his/her option for filing a Formal Level II complaint under Section II.D. of this EM, if he/she disagrees with the finding of the investigation, and the timeline for filing the complaint.
4. Formal - Level II
   1. The Complainant may file a Level II complaint with the Office of the Chancellor no later than ten (10) days after the Level I response if the Complainant is not satisfied with the outcome at Level I.
   2. The request for a Level II review shall be in writing and shall detail the specific disagreements with the Level I response.
   3. The investigator designed by the Office of the Chancellor shall meet with the Complainant to discuss the Complainant's disagreement with the Level I response. The investigator shall carefully review the issues raised by the Complainant and conduct an investigation. The investigation should be limited in scope to the Complainant's specific disagreements with the findings at Level I.
   4. The Office of the Chancellor shall respond to the Complainant no later than ninety (90) days after the Level II filing, unless an extension of the timeline has been obtained.
   5. Generally, the Level II response should include a summary of the allegation, a description of the investigative process, the standard used to determine whether a violation of the policy occurred, the evidence considered and a determination of whether the allegations were substantiated. The Level II response shall be the final decision, unless an additional step has been negotiated in the employee's collective bargaining agreement.
5. General Provisions
   1. The President of designee shall designate the person to conduct an investigation under the Executive Memorandum. The Investigator may be the discrimination complaint officer or other MPP employee or an external consultant, provided the designed Investigator is not within the administrative control or authority of the person alleged to have discriminated, harassed or retaliated, and was not involved in the investigation at the lower level(s), if any. All investigations shall be conducted in a reliable and impartial manner.
   2. CSU employees are required to cooperate with the investigation, be forthright and honest, and keep confidential the existence and details of the investigation.
   3. The investigation shall include, at a minimum, formal interviews with the Complainant and the person alleged to have discriminated or harassed (i.e., the respondent).
   4. Both the Complainant and the respondent shall have the right to identify witnesses and other evidence for consideration in connection with the investigation; however, the investigator may decide which witnesses are relevant to the investigation.
   5. The Complainant may have a representative present during his/her meeting with the Discrimination complaint officer and/or the investigator to discuss the complaint. Where the respondent is a CSU employee and the allegations are such that, if true, they could reasonably subject the respondent to discipline, then the respondent shall be permitted to have a representative accompany his/her to the interview.
   6. Time limits are defined as follows:
      1. Days contained in this procedure refer to working days, which are Monday through Friday, excluding all officially recognized university holidays or closure of the campus where the complaint originated.
      2. If the Complainant, the respondent, the witnesses, the discrimination complaint officer, the investigator, or the chancellor's office designee is on an approved leave of three (3) days or more, the time limits shall be extended by the length of time the individual is absent.
      3. Time limits set forth herein may also be extended by mutual agreement, If the University requests a time extension in order to conduct an effective investigation and the Complainant does not agree the University will issue a response within the timeline of this procedure based on the information available at the time. The investigation shall continue until the University is satisfied its duty to respond appropriately to allegations of discrimination, harassment or retaliation has been discharge, provided the investigation is completed no later than one hundred twenty (120) days after the meeting is held between the Complainant and the discrimination complaint officer or between the Complainant and the individual designated to respond, as applicable.
      4. CSU is not obligated under this procedure to investigate a complaint not timely filed under its provisions. An untimely filed complaint may not be re-filed. Notwithstanding the foregoing. CSU shall investigate the underlying allegations in an untimely filed discrimination or retaliation complaint is CSU determines the circumstances warrant investigation. The investigation conducted in such a circumstance does not resurrect the employee's complaint or permit a subsequent filing of that complaint. The response issued at the conclusion of the investigation will note that the complaint was untimely filed.
      5. A Complainant may withdraw a complaint at any time. The Complainant shall not be entitled to file any subsequent complaint on the same alleged incident under the Formal Level procedure of this EM. Although the Complainant is barred from filing subsequent complaints on the same incident, the underlying allegations of a withdrawn discrimination, harassment or retaliation complaint shall be investigated if CSU, Chico determines the circumstances warrant investigation. The investigation conducted is such a circumstance does not resurrect the employee's complaint or permit a subsequent filing of that complaint. The response issued at the conclusion of the investigation will note that the complaint was withdrawn.
      6. If, after an investigation has been conducted, the President or Office of the Chancellor concludes it is reasonably likely that a CSU, Chico policy against discrimination, harassment or retaliation was violated, he/she will take prompt and appropriate measures to remedy any damage done by the violation and to prevent any further violations.
      7. Failure by the university to respond timely shall permit the complaint to be filed at the next level.
      8. By mutual agreement, the Complainant and the University may consolidate complaints on similar issues at any level.
      9. Taking into account campus operational needs, CSU shall provide the Complainant and a representative, if any, reasonable release time for preparing and presenting the complaint upon their request.
      10. Where it is necessary for the Complainant or his/her representative to have access to specific information for the purpose of investigating a complaint, the Complainant or his/her representative shall make a written request for such information to the appropriate administrator. The Complainant or his/her representative shall have access to information within the policies and procedures and laws governing confidentiality and privacy that are relevant to any issue raised in the complaint. This provision does not authorize a Complainant access to the personnel files of another employee without the written consent of that person.