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Category:
HR / Labor Relations
Legal and Compliance


Responsible Office:

Procedure Title:
Discrimination Complaint Procedure

Document Number:
6501

Effective Date:
March 14, 2003


This procedure item applies to:
State-Operated Campuses

Table of Contents
Summary

Process
Forms
Related Procedures
Other Related Information
Authority
History
Appendices

Summary

The State University of New York (University), in its continuing effort to seek equity in education and employment and in support of federal and state anti-discrimination legislation, has adopted a complaint procedure for the prompt and equitable investigation and resolution of allegations of unlawful discrimination on the basis of race, color, national origin, religion, age, sex, sexual orientation, disability, veteran status or marital status. Harassment is one form of unlawful discrimination on the basis of the above protected categories. Conduct that may constitute harassment is described in the Definitions section.

This procedure may be used by any student or employee of a state-operated campus of the University. Employee grievance procedures established through negotiated contracts, academic grievance review committees, student disciplinary grievance boards and any other procedures defined by contract will continue to operate as before. Furthermore, this procedure does not in any way deprive a complainant of the right to file with outside enforcement agencies, such as the New York State Division of Human Rights, the Equal Employment Opportunity Commission, the Office for Civil Rights of the United States Department of Education and the Office of Federal Contract Compliance of the United States Department of Labor. However, after filing with one of these outside enforcement agencies, or upon the initiation of litigation, the complaint will be referred to University’s office of University counsel for review. Contact information for these agencies is listed in the Other Related Information section below. More detailed information may be obtained from the campus affirmative action officer.

This procedure provides a mechanism through which the University may identify, respond to, and prevent incidents of illegal discrimination. The University recognizes and accepts its responsibility in this regard and believes that the establishment of this internal, non-adversarial grievance process will benefit student, faculty, staff, and administration, permitting investigation and resolution of problems without resorting to the frequently expensive and time-consuming procedures of state and federal enforcement agencies or courts.

All campuses must use this procedure unless the campus has made application for an exception. Requests for an exception, along with a copy of the requesting campus’s discrimination complaint procedure must be filed with the office of the University counsel. The request for an exception will be acted upon by the office of University counsel after a review of the campus’s complaint procedure. The affirmative action officer on each University campus shall receive any complaint of alleged discrimination, assist the complainant in the use of the complaint form, and provide the complainant with information about various internal and external mechanisms through which the complaint may be filed, including applicable time limits for filing with each agency.

The complainant is not required to pursue the University internal procedures before filing a complaint with a state or federal agency. In addition, if the complainant chooses to pursue the University internal procedure, the complainant is free to file a complaint with the appropriate state or federal agency at any point during the process. Upon filing with an external agency, however, the University internal complaint procedure will be terminated and the matter referred to the office of University counsel for review, defense, or if deemed appropriate by counsel, involvement in mediation, conciliation or settlement with the external agency where the complaint was filed, or such other actions as may be in the interests of the University.

During any portion of the procedures detailed hereafter, the parties shall not employ audio or video taping devices.


Process
PART A: Informal Resolution

1.    The affirmative action officer, on an informal basis may receive initial inquiries, reports and requests for consultation and counseling. Assistance will be available whether or not a formal complaint is contemplated or even possible. It is the responsibility of the affirmative action officer to respond to all such inquiries, reports and requests as promptly as possible and in a manner appropriate to the particular circumstances.

Although in rare instances verbal complaints may be acted upon, the procedures set forth here rest upon the submission of a written complaint that will enable there to be a full and fair investigation of the facts.

IT IS THE COMPLAINANT’S RESPONSIBILITY TO BE CERTAIN THAT ANY COMPLAINT IS FILED WITHIN THE 90 DAY PERIOD THAT IS APPLICABLE UNDER THIS PARAGRAPH.

2.    Complaints or concerns that are reported to an administrator, manager or supervisor concerning an act of discrimination or harassment shall be immediately referred to the affirmative action officer. Complaints may also be made directly to the affirmative action officer.

3.    Employees must file a written complaint with the affirmative action officer within 90 calendar days following the alleged discriminatory act or the date on which the complainant first knew or reasonably should have known of such act. All such complaints must be submitted on the forms provided by the University (see Forms below). The Charge of Discrimination form will be used for both the initiation of complaints under the informal procedure and the conversion of the complaint to the formal procedure. Students must file a complaint within 90 calendar days following the alleged discriminatory act or 90 calendar days after a final grade is received, for the semester during which the discriminatory acts occurred, if that date is later.

4. The complaint shall contain:

a.    The name, local and permanent address(es), and telephone number(s) of the complainant.

b.    A statement of facts explaining what happened and what the complainant believes constituted the unlawful discriminatory acts in sufficient detail to give each Respondent reasonable notice of what is claimed against him/her. The statement should include the date, approximate time and place where the alleged acts of unlawful discrimination or harassment occurred. If the acts occurred on more than one date, the statement should also include the last date on which the acts occurred as well as detailed information about the prior acts. The names of any potential witnesses should be provided.

c.    The name(s), address(es) and telephone number(s) of the respondent(s), i.e., the person(s) claimed to have committed the act(s) of unlawful discrimination.

d.    Identification of the status of the persons charged whether faculty, staff, or student.

e.    A statement indicating whether or not the complainant has filed or reported information concerning the incidents referred to in the complaint with a non-campus official or agency, under any other complaint or complaint procedure. If an external complaint has been filed, the statement should indicate the name of the department or agency with which the information was filed and its address.

f.    Such other or supplemental information as may be requested.

5.    If the complainant brings a complaint beyond the period in which the complaint may be addressed under these procedures, the affirmative action officer may terminate any further processing of the complaint, refer the complaint to University counsel or direct the complainant to an alternative forum (Appendix A).

6.    If a complainant elects to have the matter dealt with in an informal manner, the affirmative action officer will attempt to reasonably resolve the problem to the mutual satisfaction of the parties.

7.    In seeking an informal resolution, the affirmative action officer shall attempt to review all relevant information, interview pertinent witnesses, and bring together the complainant and the respondent, if desirable. If a resolution satisfactory to both the complainant and the respondent is reached within 24 calendar days from the filing of the complaint, through the efforts of the affirmative action officer, the officer shall close the case, sending a written notice to that effect to the complainant and respondent. The written notice, a copy of which shall be attached to the original complaint form in the officer’s file, shall contain the terms of any agreement reached by complainant and respondent, and shall be signed and dated by the complainant, the respondent and the affirmative action officer. (See Forms for the Memorandum: Status - Resolved form).

8.    If the affirmative action officer is unable to resolve the complaint to the mutual satisfaction of the complainant and respondent thin 24 calendar days from the filing of the complaint, the officer shall so notify the complainant. The affirmative action officer shall again advise the complainant of his or her right to proceed to the next step internally and/or the right to separately file with appropriate external enforcement agencies.
The time limitations set forth above in paragraphs 7 and 8, may be extended by mutual agreement of the complainant and respondent with the approval of the affirmative action officer. Such extension shall be confirmed in writing by the complainant and respondent.

9.    At any time, subsequent to the filing of the Charge of Discrimination form, under Part A, the complainant may elect to proceed as specified in Part B of this document and forego the informal resolution procedure.

PART B: The Formal Complaint Procedure

1.    The formal complaint proceeding is commenced by the filing of a complaint form as described in Part A(4). The 90 day time limit also applies to the filing of a formal complaint.

2.    If the complainant first pursued the informal process and subsequently wishes to pursue a formal complaint, he/she may do so by checking the appropriate box, and signing and dating the complaint form.

3.    The complaint, together with a statement, if applicable, from the affirmative action officer indicating that informal resolution was not possible, shall be forwarded to the chairperson of the campus affirmative action committee within 10 calendar days from the filing of the formal complaint.

4.    If an informal resolution was not pursued, the affirmative action officer shall forward the complaint to the chairperson of the campus affirmative action committee within 10 calendar days from the filing of the complaint.

5.    Upon receipt of a complaint, the affirmative action officer will provide an initialed, signed, date-stamped copy of the complaint to the Complainant. As soon as reasonably possible after the date of filing of the complaint, the affirmative action officer will mail a notice of complaint and a copy of the complaint to the Respondent(s). Alternatively, such notice with a copy of the complaint may be given by personal delivery, provided such delivery is made by the affirmative action officer (or designee) and, that proper proof of such delivery, including the date, time and place where such delivery occurred is entered in the records maintained by or for the affirmative action officer.

6.    Within 10 calendar days of receipt of the complaint, the chairperson of the campus affirmative action committee shall send notification to the Complainant, the Respondent and the campus president that a review of the matter shall take place by a tripartite panel to be selected by the Complainant and the Respondent from a pre-selected pool of eligible participants (Appendix B).

7.    The tripartite panel shall consist of one member of the pre-selected pool chosen by the complainant, one member chosen by the respondent and a third chosen by the other two designees. The panel members shall choose a chair among themselves. Selection must be completed and written notification of designees submitted to the chairperson of the campus affirmative action committee no later than 10 calendar days after the complainant, the respondent and the campus president received notice under paragraph six above.

If the President is the Respondent, then the third member of the panel shall be selected by the chancellor or designee in system administration.

8.    In the event that the procedural requirements governing the selection of the tripartite panel are not completed within 10 calendar days after notification, the chairperson of the campus affirmative action committee shall complete the selection process.

9.    The tripartite panel shall review all relevant information, interview pertinent witnesses and, at their discretion, hear testimony from and bring together the complainant and the respondent, if desirable. Both the complainant and the respondent(s) shall be entitled to submit written statements or other relevant and material evidence and to provide rebuttal to the written record compiled by the tripartite panel.

10.  Within 48 calendar days from the completion of selection of the panel, the chairperson of the tripartite panel shall submit a summary of its findings and the panel’s recommendation(s) for further action, on a form to be provided by the affirmative action officer, to the president. If the president is the respondent, the findings and recommendation shall be submitted to the chancellor or his designee. When the panel transmits the summary of its Findings and the panel's recommendations to the President, the panel will also send, concurrently, copies of both the summary of its findings and recommendation(s) to the Complainant, Respondent and the Affirmative Action Officer.

11.  Within 24 calendar days of receipt of the written summary, the president or designee shall issue a written statement to the complainant and respondent, indicating what action the president proposes to take. The action proposed by the president or designee, may consist of:

a.       A determination that the complaint was not substantiated.

b.       A determination that the complaint was substantiated.

i.     For employees (including student employees) not in a collective bargaining unit: The president may take such administrative action as he/she deems appropriate under his/her authority as the chief administrative officer of the college, including but not limited to termination, demotion, reassignment, suspension, reprimand, or training.

ii.    For students: The president may determine that sufficient information exists to refer the matter to the student judiciary or other appropriate disciplinary panel for review and appropriate action under the appropriate student conduct code.

iii.   For employees in collective bargaining units: The president may determine that sufficient information exists to refer the matter to his/her designee for investigation and disciplinary action or other action as may be appropriate under the applicable collective bargaining agreement.

The action of the president shall be final.

If the president is the respondent, the chancellor or his designee shall issue a written statement indicating what action the chancellor proposes to take. The chancellor’s decision shall be final for purposes of this discrimination procedure.

12.  No later than 10 calendar days following issuance of the statement by the president or the chancellor, as the case may be, the affirmative action officer shall issue a letter to the complainant and to the respondent(s) advising them that the matter, for purposes of this discrimination procedure, is closed.

The time limitations set forth above in paragraphs 6, 7, 8, 10, 11, and 12, may be extended by mutual agreement of the complainant and respondent with the approval of the panel. Such extension shall be confirmed in writing.

13.  If the complainant is dissatisfied with the president’s or chancellor’s decision, the complainant may elect to file a complaint with one or more state and federal agencies. The campus affirmative action officer will provide general information on state and federal guidelines and laws, as well as names and addresses of various enforcement agencies (Appendix A).

Definitions  

Harassment on the Basis of Protected Characteristic(s) other than Sex/Genderharassment based on race, color, age, religion, national origin, disability, sexual orientation or other protected characteristics is oral, written, graphic or physical conduct relating to an individual's protected characteristics that is sufficiently severe, pervasive, or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the educational institution’s programs or activities.

Sexual Harassment in the Educational Setting – unwelcome conduct of a sexual nature. Sexual harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. Sexual harassment of a student denies or limits, on the basis of sex, the student’s ability to participate in or to receive benefits, services, or opportunities in the educational institution’s program.

Sexual Harassment in the Employment Settingunwelcome sexual advances, requests for sexual favors, or verbal or physical conduct of a sexual nature when any of the following occurs:

·         Submission to such conduct is made a term or condition of an individual’s continued employment, promotion, or other condition of employment.

·         Submission to or rejection of such conduct is used as a basis for employment decisions affecting an employee or job applicant.

·         Such conduct is intended to interfere, or results in interference, with an employee’s work performance, or creates an intimidating, hostile, or offensive work environment.


Forms

Form A - State University of New York Charge of Discrimination

Form B - Memorandum: Status - Resolved


Related Procedures

There are no related procedures relevant to this procedure.


Other Related Information

Discrimination Complaint

Sexual Orientation Nondiscrimination - Sexual Orientation Nondiscrimination


Authority

45 CFR § 86.8 (b) (Designation of responsible employee and adoption of grievance procedures)


History

Memorandum to the presidents from office of the chancellor dated March 14, 2003.

Memorandum to the presidents from office of vice chancellor and chief operating officer dated April 26, 2002.

Memorandum to presidents from office of University counsel and the vice chancellor for legal affairs, dated December 27, 2002.


Appendices

Appendix A - External Enforcement Agencies

Appendix B - Selection and Training of Panel and Tripartite Hearing Committee