Discrimination, Harassment, and Retaliation Policy

Note: This policy is reprinted from equal-opportunity-diversity-and-affirmative-action-plan

TYPES OF PROHIBITED DISCRIMINATION

Discrimination is an intentional or unintentional act that adversely affects employment and/or educational opportunities because of a person’s membership in a protected class, perceived membership in a protected class or association with a member(s) of a protected class. A single act of discrimination may be based on more than one protected class status. The sections below describe the specific forms of discrimination, harassment, and retaliation prohibited under this Policy. When speech or conduct is protected by academic freedom and/or the First Amendment, it will not be considered a violation of this Policy.

Disparate Treatment Discrimination

Intentional treatment of an individual or group that is less favorable than treatment of others based on discriminatory reasons. For example, if Latino employees are the only ones who need to take an exam to qualify for employment, they are experiencing disparate treatment. 4.1.2 Disparate Impact Discrimination Disparate impact occurs where disparate treatment is unintentional because policies, practices, rules, or other systems that appear to be neutral result in a disproportionate impact on a protected group, and such disparities cannot be justified by business necessity. For example, a qualification test may create a disparate impact if the pass rate among Latino applicants is significantly lower than for other groups.

Discriminatory Harassment

A form of prohibited discrimination including verbal and/or physical conduct based on membership, association with, or perceived membership in a protected class that:

(1) has the purpose or effect of creating an objectively intimidating or hostile work or educational environment;

(2) has the purpose or effect of unreasonably interfering with an individual’s work or educational opportunities; or

(3) otherwise unreasonably adversely affects an individual’s employment or educational opportunities. Reasonable directions or warnings by authorized University personnel as to the time, place, and manner in which employees perform their assigned responsibilities, students carry out their educational assignments, or program participants engage in sponsored activities do not constitute evidence of discriminatory harassment under this Policy.

Hostile Environment Harassment

Hostile environment harassment is a form of discriminatory harassment where:

• The complainant is an actual or perceived member of a protected class, or associated with a member of a protected class;

• The complainant was subjected to conduct directed at said protected class;

• The harassing conduct was subjectively offensive (i.e., unwelcome) and objectively offensive; and 15 • Considering the totality of the circumstances, the conduct was sufficiently severe or pervasive that it altered conditions of employment or education by creating an intimidating, hostile, or humiliating environment.

Whether a “hostile” environment has been created is a fact-specific inquiry, based on the totality of the circumstances, that includes, but is not limited to, consideration of the following: • The degree to which the conduct affected the complainant’s ability to access the University’s program or activity;

• The type, frequency, and duration of the conduct;

• The parties’ ages, roles within the University’s program or activity, previous interactions, and other factors about each party that may be relevant to evaluating the effects of the conduct;

• The location of the conduct and the context in which the conduct occurred; and • Other harassment on the same or similar basis in the University’s program or activity.

Under this definition, simple teasing, offhand comments, and isolated incidents, unless severe or pervasive and objectively and subjectively offensive, will not amount to hostile environment harassment under this Policy.

Quid Pro Quo Harassment

Quid pro quo protected class harassment is a form of prohibited discrimination that can occur when an employee’s continued employment or receipt of workplace benefits, promotions, assignments, or opportunities, etc.; or a student’s educational access or opportunities are conditioned on the individual’s willingness to tolerate conduct of a harassing nature. In a quid pro quo protected class harassment complaint, a preponderance of the evidence must show: • Conduct requiring the complainant to alter, conceal, or eliminate a characteristic signifying their membership in a protected class or other unwelcome conduct of a harassing nature based on protected class; and • Submission to or rejection of the conduct was made either explicitly or implicitly as a term or condition of employment or education or as a basis for employment or educational decisions affecting that individual. A person may have a claim of quid pro quo harassment when they either reject or submit to the conduct in question, or a mix of both. In either type of case, proof of the above elements necessarily proves that conduct was unwelcome. Some examples of quid pro quo protected class harassment include: Example 1: A student’s grade in a course is conditioned on their willingness to conform and participate in their instructor’s religious practices; or Example 2: An employee assigned male at birth, who identifies as female, is required to dress in traditionally masculine clothing in order to keep her job and is terminated after refusing to do so. Coinciding Harassment Depending on the circumstances, a person can suffer one type of protected class harassment or both types of protected class harassment simultaneously.

Retaliation

Retaliation is prohibited by this Policy and the University will respond to information and complaints involving conduct that reasonably may constitute retaliation using the same procedures it uses for other forms of prohibited discrimination. Retaliation, even in the absence of provable discrimination in the original complaint, constitutes as serious a violation of this Policy as proved discrimination under the original claim, complaint or charge. Retaliation may include adverse treatment, intimidation, threats, coercion, or discrimination against any person by the University, a student, or an employee, or other person authorized by the University to provide aid, benefit, or service under the University’s education program or activity,

(1) for the purpose of interfering with any right or privilege secured by this Policy, or

(2) because the person has reported information, made a complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this policy, or

(3) because the person is suspected of having filed such claims, complaints, or charges, or

(4) the person has protested practices alleged to be violative of the nondiscrimination policies of the University, the BHE, or local, state or federal regulation or statute. Peer retaliation, which is defined as retaliation by one student against another student or one employee against another employee of similar rank or authority, is also prohibited. The University may require its employees to participate in, or otherwise assist with, an investigation, proceeding, or hearing, as such requirement does not constitute retaliation under this Policy.