Pima County Community College District Standard Practice Guide

PURPOSE

This procedure provides a prompt, equitable, non-judicial, administrative resolution of complaints by employees, applicants for employment, and students of discrimination.

In practice, this means that the College prohibits unlawful behavior and speech, as defined by applicable state and federal law, which interfere with another person’s work performance or education by creating an intimidating, offensive, or hostile environment.  No form of unlawful harassment including that based on race, color, national origin, religion, disability, pregnancy, age, military status, or gender will be tolerated. Unlawful harassment includes sexual harassment, which in turn includes harassment by members of the same or opposite sex.

This standard practice guide applies to all persons who are employed by the College, as well as to students and persons who are invited onto College property or into business with the College. 

DEFINITIONS

Discrimination
Discrimination can include, but is not limited to the following:

1. Racial jokes or slurs
2. Religious jokes or slurs
3. National origin jokes or slurs
4. Age-related jokes or slurs
5. Disability jokes or slurs
6. Any negative job-related or education-related decisions based on race, age, color, national origin, religion, gender, disability, pregnancy, or military status
7. Any denial of job-related or education-related opportunities or benefits based on race, age, color, national origin, religion, gender, disability, pregnancy, or military status
8. Requiring a sexual relationship from a subordinate or a student as part of the conditions of a job or a grade

Unlawful Harassment
Unlawful Harassment is harassment directed at others based on any of the classifications protected under federal anti-discrimination laws.  This includes harassment based on a person’s race, color, national origin, religion, disability, pregnancy, age, military status, or gender. Unlawful harassment is a form of discrimination and can take many forms, including sexual harassment, which is included in the definition of unlawful harassment, and is additionally defined below.

NOTE:    Harassment other than unlawful harassment is covered under the standard practice guide for Disruptive Workplace Behaviors.

Sexual Harassment
Sexual harassment is defined as any unwelcome advance, request for sexual favors, or other verbal or physical conduct of a sexual nature, when:

1. Submission to the conduct is made either an explicit or implicit condition of employment, or endorsement, or participation in a College class or activity;
2. Submission to or rejection of the conduct is used as the basis for an employment or educational decision affecting the harassed employee or student; or
3. The harassment substantially interferes with an employee’s work performance, or student’s educational performance, or creates an intimidating, hostile, or offensive work or educational environment.

Prohibited sexual harassment or conduct under Equal Employment Opportunity laws includes, but is not limited to:

1. Unwanted physical contact or conduct of any kind, including sexual flirtations, touching, advances, or propositions;
2. Verbal harassment of a sexual nature, such as lewd comments, sexual jokes or references, and offensive personal references;
3. Jokes of a sexual nature;
4. Demeaning, insulting, intimidating, or sexually suggestive comments about an individual’s dress or body;
5. The display in the workplace of demeaning, insulting, intimidating, or sexually suggestive objects or pictures, including nude photographs;
6. Demeaning, insulting, intimidating, or sexually suggestive written, recorded, or electronically transmitted images.

Persons Affected
All persons who are employed by the College have the responsibility to participate in keeping the College free of all forms of unlawful harassment. In addition, upon experiencing conduct that is reasonably believed to be unlawful harassment, or upon witnessing behavior that the observer reasonably believes to be harassment of any kind, an employee has an obligation under College policy to provide notice of the harassment to the appropriate administrator or the College Equal Employment Opportunity/Affirmative Action office.

(Note: This complaint procedure is not followed for employee grievances or for student complaints about scholastic issues or general conduct regulations.  Faculty and staff alleging violations, misapplication, or misinterpretation of the provisions of one of the personnel policy statements shall follow the appropriate grievance procedure as found in the Personnel Policy Statement.  Complaints alleging violations of the general conduct regulations for students or allegations of violations of the Scholastic Ethics Code shall follow the appropriate procedure as outlined in the Student Rights and Responsibilities handbook.)

Confidentiality and Need to Know
The College Equal Employment/Affirmative Action office can provide qualified confidentiality, practiced on a need to know basis.  For purposes of investigations conducted under this standard practice guide, need to know is determined on a case-by-case basis.

All reports and complaints of unlawful harassment, as well as all information gathered as a result of the internal complaint process, shall be treated as confidential to as great an extent as reasonably possible.  Cooperation from all parties to an investigation is required by College policy to maintain this qualified confidentiality.

Unequal Status Relationships
Relationships between persons of unequal organizational status are those where one person is responsible for the employment or educational performance, evaluations, progress, access, and advising or other employment or educational goals or activities of another employee or student.

Consensual Relationship Sexual Harassment
Sexual harassment can still occur in a consensual relationship and a consensual relationship is not necessarily a defense in the face of a complaint involving a relationship between two persons of organizationally unequal status.  In the context of a consensual romantic or sexual relationship or after the demise of a consensual relationship, sexual harassment can occur where a person experiences adverse employment or educational outcomes unrelated to performance.

Consensual relationships between persons of unequal organizational status, whether it occurs within academic or administrative activities of the College, can raise serious concerns about validity of consent, conflict of interest, and unfair treatment.  Such consensual relationships, if disclosed to the appropriate administrative supervisor, can be a defense if arrangements are made to protect objectivity and fairness in employment and educational practices.

Illegal Retaliation
Illegal retaliation occurs when an adverse action is taken against someone because s/he has complained about a workplace or educational practice that the person in good faith believed was prohibited workplace or educational discrimination, even if the objected to practice in fact was not a violation of Equal Employment law.  Illegal retaliation also can occur when an adverse action is taken against someone because he or she has taken part in a legal proceeding or an investigation tied to a claim of prohibited discrimination.  It is illegal retaliation to punish someone for exercising his/her Equal Employment Opportunity rights as a matter of federal Equal Employment Opportunity law as well as College policy.

All allegations of retaliation will be investigated by the EEO/AA Officer, or designee.

Examples of Retaliation
When an individual participates in protected activity such as the discrimination complaint process s/he is protected from retaliation.  Retaliation requires that an individual suffered an adverse employment or educational decision and there was a causal link between the protected activity and the adverse employment or educational decision.  The rationale for such decisions and actions always will be reviewed to determine if retaliation occurred.  Examples of retaliation as a result of any participation in the complaint process include, but are not limited to:

1. Firing an employee after s/he has filed an internal or external Equal Employment Opportunity complaint;
2. Giving a poor performance evaluation to an employee who reports sexual harassment when all previous performance reviews have been satisfactory or better;
3. Failing or lowering the grade of a student who has filed a complaint;
4. Refusing to hire someone who has been named in a complaint where the allegations were not supported by the fact-finding;
5. Providing negative references to prospective employers;
6. Harassing an individual in the work or educational environment;
7. Demotion;
8. Limiting or eliminating benefits.

PROCESS AND PROCEDURES

Persons who wish to report unlawful discrimination should contact the College Equal Employment Opportunity/Affirmative Action (EEO/AA) office to file a complaint. A complaint also may be lodged with any College official but must be forwarded to the College EEO/AA office for analysis and investigation of the complaint, regardless of its origins as a matter of employment or education.

All reports and complaints of unlawful harassment or other unlawful discrimination shall be investigated in a prompt but thorough fashion allowing due process to all persons involved under the College’s internal, administrative Equal Employment Opportunity/Affirmative Action Discrimination Complaint process.  All members of the College are required to participate in the internal administrative process in a cooperative and truthful manner.

Pursuant to this standard practice guide, the College will provide an expeditious but thorough administrative process to investigate allegations of discrimination and harassment.  This procedure is available to all employees, applicants for employment, and students.

This procedure also is available to anyone who wishes to file a complaint alleging discrimination on the basis of disability under Title II of the Americans with Disabilities Act (ADA) in the provision of services, activities, programs, or benefits by Pima County Community College.  Title II allegations are to be filed directly with the College EEO/AA Director, or an appropriate administrator.

College Contacts
The EEO/AA Director administers the discrimination complaint process.  All complaints are received by and investigated by the College EEO/AA office.

Representation during the Complaint Process
A support person, who is not an attorney, may accompany the complainant or the respondent through the fact-finding process only.  Individuals providing support are allowed to sit in on meetings but are not allowed to participate in the process in any fashion.  Support individuals may take notes for the employee or be otherwise supportive.  Time spent filing complaints or participating in investigation of complaints is considered College business and is considered time worked.

Duty to Report
Upon observation, written or spoken notice, or any other form of information receipt, a College employee has an obligation under this standard practice guide to report anything s/he reasonably believes to be in violation of federal anti-discrimination law and the College’s unlawful discrimination policy.  Reports can be made to a supervisor, an administrator, and directly to the College EEO/AA office.

Duty to Investigate
Once any member of the College is made or becomes aware of, by some form of notice, alleged unlawful discrimination or harassment reported to a supervisor and administrator or the College EEO/AA office, the College is obligated to investigate the allegations regardless of whether it conforms to a particular format or whether notice is provided in writing.

Cease and Desist Orders
When an incident is reported that involves harassment, the EEO/AA Director or an appropriate administrator may issue a cease and desist order to the respondent as well as the complainant. This shall include specific warning regarding retaliation.  This order is issued to ensure protection of all parties until a thorough fact-finding investigation can be completed.

A respondent may be placed on investigatory paid leave of absence per the Personnel Policy Statement for College Employees.  This will be determined on a case-by-case basis by the Executive Vice Chancellor for Administration.

Time Line for Investigation
Time lines are identified on the EEO/AA office complaint forms (available at the College EEO/AA office) with an emphasis on responsiveness and expeditiousness.  Time lines will be adhered to as closely as possible, with deference given to thoroughness and the individual circumstances of each complaint. Time lines will ultimately depend on the nature and quality of the allegations and the ability to investigate them in a manner that is proportional, expeditious, and thorough.

Documentation resulting from the investigation of a complaint shall maintained as a confidential record in the EEO/AA office.  Access to documents or any other kind of information related to a complaint is permitted to College officials with a need to know, or as allowed or required by law.

Retaliation Claims
A retaliation charge constitutes a separate claim that is distinct from any other complaint in which a person is involved. A claimant would file a new and separate claim to establish a retaliation complaint. The EEO/AA Director or designee will investigate all allegations of retaliation.

Disciplinary Action
When the outcome of an investigation results in a determination that discrimination or harassment has occurred in violation of College policy, an employee or student may be subject to immediate and appropriate disciplinary action, up to and including termination for employees or expulsion for students.  On a case by case basis, training or counseling may be required regardless of the final outcome of the investigation.

Under the Personnel Policy Statement for College Employees, employees are required as a condition of employment to cooperate with the College during an investigation of discrimination and harassment complaints.

Disciplinary Action
Disciplinary action will be taken against any individual who intentionally files a false discrimination or harassment complaint and against any individual who intentionally provides false testimony during investigations. Disciplinary action also will be applied to any individual who interferes with an investigation.

Internal Complaint Process
Employees are encouraged to use the internal complaint procedure as a way of resolving disputes in an equitable and timely manner and at the lowest supervisory level.  This is encouraged as a beneficial way to handle complaints within the College for both its employees and its students.

Allegations of discrimination shall be filed with the College within 30 calendar days after the alleged discrimination or harassment occurred or from the date the individual becomes aware of the discrimination or harassment.  Exceptions to this time limitation may be made on a case-by-case basis as determined by the EEO/AA office.

Internal Process Contact
All persons who believe they need to contact the EEO/AA office or avail themselves of the College complaint process are entitled to unencumbered access to the EEO/AA office.  Contact can be made in any form, including email contact via the EEO/AA office web page on the Pima County Community College web site.  For in-person contact the EEO/AA office can be reached directly at the following address and telephone number:

Filing an External Complaint
Although use of the internal procedure is encouraged, individuals also have the right to file complaints with appropriate external agencies.  It should be noted, however, that the College will not process any discrimination complaint once an external agency has begun an investigation of the same complaint.

External agencies are:

REVIEW AND FACT FINDING

The time line to complete the steps in the discrimination complaint process will be dependent upon the particular circumstances of each set of allegations and the timing of the complaint.  The processing of all complaints will be done with dedication to due diligence, without sacrificing thoroughness for expeditiousness.

A representative of the EEO/AA office will meet with a complainant and review the allegations, clarify information in the written statement, and verify or identify resolutions for closure.  In addition, the complainant will be informed of his/her right to contact an outside agency and applicable deadlines.

Appeal, Final Investigation, and Decision
Upon receipt of a request for review or appeal, the EEO/AA director will determine whether there is a sufficient basis for additional fact-finding.  If the director determines there is no foundation for the second review or appeal, the director shall provide the complainant with a written explanation of the rationale for rejection.  This will conclude the internal process.

If the director finds a foundation for the request for review or appeal, then further fact-finding will follow applying the same principles as described in this procedure. Upon completion of the fact-finding, the complainant will be notified of the conclusions and the process will come to closure, as appropriate.  This will conclude the internal process.

APPLICANT COMPLAINTS

Upon receipt of allegations of discrimination from applicants for employment, the EEO/AA office will conduct timely investigation based upon which point in the employment selection process the complaint is filed.  This will involve review of the documentation from the job file and also may involve interviewing key participants in the recruitment and employment selection process.

The fact-finding will be documented and key points will be shared with the complainant and any named respondent.  The internal complaint process is concluded with the final decision or resolution of the EEO/AA office.

Requests for Confidential Information
All documents involved in the discrimination complaint investigation process are considered confidential documents. All requests for these documents will be processed by the EEO/AA director.

Contingency Situations – Withdrawing a Complaint
If an individual chooses to change his or her mind about filing a complaint after initiating the complaint process, s/he will be asked to make a written, signed statement as to why they wish to end the process.  This statement will be placed in the complaint file.

The College still will be obligated to investigate any allegations of discrimination or harassment with or without the consent and cooperation of the complainant.

Failure or Refusal to Sign Forms
If the complainant does not agree to sign any forms involved in the discrimination complaint process, it will be so noted on the form by the appropriate EEO/AA office staff member.  This does not stop or change the process.  A copy of the form will be given to the complainant.

OUTCOMES

Any person who believes s/he has been discriminated against in any College practice will have an objective process available to him/her to process his/her complaint, and all parties to the complaint will be treated fairly and with due process.

HyperLinks to Associated Documents

BP-1503