Discrimination Complaint Procedures
Sponsor: |
Affirmative Action Officer (AAO) and Chief Diversity Officer (CDO) |
|---|---|
Contact: |
Affirmative Action Officer (AAO) and Chief Diversity Officer (CDO) |
Category: |
Human Resources |
Number: |
900.017 |
Effective Date: |
07/01/2022 |
Implementation History: |
2003, 2015, 2021 |
Keywords: |
discrimination, harassment, complaint, sexual violence |
Background Information: |
The original procedures were drafted in March 2003 and revised in May 2015 pursuant to a SUNY-wide compliance review with the Office for Civil Rights. This document was then updated and adopted in January 2021 in order to comply with Title IX regulations and improve the efficiency and effectiveness in which complaints are addressed. |
Purpose
In its continuing effort to seek equity in education and employment, and in support of federal and state anti-discrimination legislation, State University of New York University at Empire State (“SUNY Empire” or “University”)has adopted this Discrimination Complaint Procedure (“Procedure”) for the prompt and equitable investigation and resolution of allegations of unlawful discrimination on the basis of age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, criminal conviction or any other characteristic protected by law (hereinafter “protected characteristic”). Harassment on the basis of the above protected categories is one form of unlawful discrimination. SUNY Empire will take steps to prevent discrimination and harassment, to prevent the recurrence of discrimination and harassment, and to remedy its discriminatory effects on the victim(s) and others, if appropriate.
Definitions
Complainant is the individual bringing forward a complaint of harassment, discrimination, or retaliation.
Discrimination is the different treatment of an individual or group based upon a factor prohibited by law, including a protected characteristic, that adversely affects the individual’s or group’s employment or academic status.
Discrimination may also result from failure of the university to provide reasonable accommodations to individuals when required due to the individual's disability, religion, pregnancy status, maternity, breastfeeding, transgender status, or domestic or sexual violence victim status.
Harassment is a form of discrimination consisting of oral, written, graphic or physical conduct relating to an individual's protected characteristics that has the effect of subjecting the individual to inferior terms, conditions or privileges of education or employment or interferes with or limits the ability of an individual to participate in or benefit from the University’s programs or activities. Such conduct must amount to more than petty slights or trivial inconveniences, but need not be severe or pervasive. Engaging in speech or expression protected by the First Amendment is not a violation of SUNY Empire policy.
Interim measures are steps taken to stabilize the situation, prevent continuing misconduct, support the parties, and protect the integrity of the investigation.
Retaliation is an adverse action taken against an individual as a result of complaining about or providing information regarding unlawful discrimination or harassment, exercising a legal right, and/or participating in a complaint investigation as a third-party witness. Any action that would discourage a reasonable person from making or supporting a charge of discrimination can constitute retaliation.
Title IX Sexual Harassment means conduct on the basis of sex that satisfies one or more of the following:
- An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual's participation in unwelcome sexual conduct;
- Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity; or
- “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).
Respondent is the individual or entity against whom a complaint has been filed. When a complaint is made against a group or entity, the campus shall identify an appropriate representative to act on behalf of the respondent.
Statements
Applicability
This Procedure may be used by any student or employee, applicants for employment, interns, whether paid or unpaid, volunteers, contractors and persons conducting business with SUNY Empire, as well as other third-parties who are participating in a University-sponsored program or activity. Complaints alleging Title IX Sexual Harassment will be investigated and adjudicated in accordance with the University’s Title IX Grievance policy. Employee grievance procedures established through negotiated contracts, academic grievance procedures, student disciplinary processes, and any other procedures defined by policy or contract will generally operate independently from this Procedure, but may be used to give effect to findings where appropriate. Human resources or employee labor relations must be notified of complaints involving represented employees at the onset of the processes described in this procedure.
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 (“SDHR”), the Equal Employment Opportunity Commission (“EEOC”), the Office for Civil Rights (“OCR”) of the United States Department of Education, and the Office of Federal Contract Compliance Programs (“OFCCP”).
Procedures
This Procedure provides a mechanism through which SUNY Empire may identify, respond to, and prevent incidents of illegal discrimination. SUNY Empire recognizes and accepts its responsibility in this regard, and believes that the establishment of this internal grievance process will benefit students, faculty, staff, and administration, permitting investigation and resolution of violations of law or policy. All parties involved in the investigation are expected to cooperate and provide truthful information throughout the investigation. Failure to do so may compromise the integrity of the investigation or cause delays. All members of the campus community are expected to cooperate with this Procedure.
SUNY Empire will keep investigations confidential to the extent possible. During any portion of the procedures detailed hereafter, neither the complainant, respondent(s), nor any witnesses shall employ audio or video taping devices.
Retaliation against a person who files a complaint, serves as a witness, or assists or participates in any manner in this Procedure is strictly prohibited and may result in disciplinary action up to and including termination or expulsion. Employees who experience retaliation should contact the campus Affirmative Action Officer (“AAO”), or designee, and may file a complaint pursuant to this Procedure. Students who experience retaliation should contact the Title IX Coordinator.
Except as required by law, SUNY Empire will comply with law enforcement requests for cooperation, and such cooperation may require the campus to temporarily delay the fact-finding aspect of an investigation while the law enforcement agency is in the process of gathering evidence. The University will resume its investigation as soon as law enforcement notifies the University that such investigation will not interfere with the criminal investigation or prosecution. SUNY Empire will implement appropriate interim steps during the law enforcement agency’s investigation to provide for the safety of the victim(s) and the campus community, as described below.
If a parallel or overlapping complaint has been filed with an outside enforcement agency (e.g., SDHR, OCR, EEOC), the deadlines and process described in this Procedure may be modified to the extent necessary to avoid interference with the outside enforcement agency’s investigation. Upon the initiation of litigation, the investigation may pause or continue in a manner designed to avoid conflict with litigation counsel, court procedure and judicial rulings.
A. Consultation and Review
Any student, employee, or third party may consult with the AAO or Title IX Coordinator regarding potential discrimination, harassment or retaliation. This initial contact may occur by telephone, email, videoconference, or in person.
It is the responsibility of the AAO or Title IX Coordinator to respond to all such inquiries, reports, and requests as promptly as possible, and in a manner appropriate to the particular circumstances. This response may include interim measures to protect the parties during the investigation process as well as information on how to file a complaint using this Procedure and/or with an outside enforcement agency. Complaints or concerns that are reported to an administrator, manager or supervisor concerning an act of discrimination or harassment, or acts of discrimination or harassment that administrators, managers, or supervisors observe or become aware of, shall be immediately referred to the AAO or Title IX Coordinator.
B. Filing and Processing of Complaints
The AAO or Title IX Coordinator (hereinafter “Investigator”) who receives any complaint of alleged discrimination shall:
- Inform the complainant about the complaint process and other internal options to resolve the issue;
- Assist the complainant in the use of the complaint form; and
- Provide the complainant with information about various external agencies with which the complaint may be filed, including where to find applicable time limits for filing with each agency.
Although in limited circumstances, verbal complaints may be acted upon, the procedures set forth here rest upon the submission of a written complaint submitted by paper or electronically that will enable a full and fair investigation of the facts.
All complaints must be submitted on the forms provided by the University (see Forms below).
As soon as reasonably possible after the filing of the complaint, the investigator will provide a copy of the complaint, along with a copy of this Procedure, to the respondent(s).
C. Time Limitations for Filing a Discrimination Complaint
Discrimination should be reported within one year after the last act of alleged discrimination or harassment occurred. In instances involving a student charge of discrimination against a faculty member that occurred in the context of a subordinate-supervisor academic relationship (e.g., teaching, advising, thesis or dissertation supervision, coaching, clinical medical supervision), the time period may be extended until one year after the student is no longer under the faculty member's academic or clinical medical supervision or three years from the date the most recent alleged discrimination occurred, whichever is earlier. For allegations of sexual harassment, including sexual violence, the time period for reporting is extended to within seven years of the alleged acts of sexual harassment. Failure to report discrimination within the relevant limitation period may lead to dismissal of the complaint.
D. Conflicts of Interest
In the event that the AAO, Title IX Coordinator, or designee cannot conduct an investigation due to a conflict of interest, SUNY Empire will ensure that the report of discrimination is investigated by individuals with experience and training in discrimination compliance.
E. Informal Resolution
The individual may elect to have the matter resolved informally, if appropriate. No party will be required to participate in informal resolution, and the campus may never condition enrollment, employment, or enjoyment of any other right or privilege upon agreeing to an informal resolution.
Informal resolution of complaints of sexual harassment may be addressed informally if the complainant and respondent agree. Complainant will not be required to resolve the problem directly with the respondent. Complaints of sexual violence will not be resolved by using informal processes.
In all other discrimination complaints, the Investigator may attempt to resolve the underlying issue with the agreement of complainant and respondent. In such cases, the Investigator shall review all relevant information and interview complainant, respondent(s), and pertinent witnesses. The Investigator will take all reasonable steps to complete the inquiry in a timely manner. The time limitations for investigating a complaint shall continue during the pendency of the informal resolution process. Any party or the Investigator may elect to end the informal resolution process and proceed to the formal resolution procedure at any time as it is within the time limit (See section C above). If the individual decides to do so, a complaint form should be signed; as described in section B. If the Investigator can find a resolution satisfactory to both the complainant and the respondent within 24 business days from the filing of the complaint, the Investigator will close the case, sending a written notice to that effect to both parties, including the terms of agreement, signed and dated by all parties and the Investigator, with a written report to the president. A copy of the written notice shall be attached to the original complaint form in the Investigators file. If the Investigator is unable to resolve the complaint to the mutual satisfaction of the complainant and respondent within 24 business days from the filing of the informal complaint the Investigator shall so notify the parties and initiate the formal investigation process.
F. Formal Investigation and Resolution
The formal complaint proceeding is commenced by the filing of a complaint form as described above and/or by a party’s decision to discontinue the informal resolution process. The outcome of the process is a written report describing the relevant evidence and making findings.
The investigatory process is guided by the need to balance the remedy of unlawful discrimination and harassment with principles of fairness, due process, and confidentiality. Accordingly, parties to an investigation are afforded the following rights and protections:
- SUNY Empire will maintain the confidentiality of discrimination reports to the fullest extent possible, and requests the same of parties to the investigation and third-party witnesses. Records of conversations with parties or witnesses will not be released outside of the institution unless required by law (e.g., outside investigation, FERPA, FOIL), court order, or as needed to pursue available remedies such as student/employee discipline.
- The respondent is entitled to due process, including knowledge of the specific allegation(s) and an opportunity to respond prior to imposition of sanctions or an adverse employment or education action. No finding or presumption of wrongdoing will be made absent factual evidence that supports the finding.
- Complainants and respondents will each have notice of the evidence discovered during the investigation, as well as an opportunity to explain and respond to the evidence. The Investigator will keep the parties informed of the progress of the investigation and any actions taken that may affect their rights.
- Complainants and third-party witnesses are protected against retaliation for reporting discrimination or participating in an investigation. If a party feels that any negative action has been taken as a result of reporting discrimination or participating in a complaint investigation, this allegation will be investigated separately.
The Investigator may refer allegations of serious misconduct that could warrant disciplinary action to the applicable disciplinary offices (e.g., employee relations, student conduct) for investigation and adjudication. When possible, such referrals will be made upon completion of the investigation. However, earlier referral or consultation may be appropriate where the seriousness of the alleged conduct requires immediate action (e.g., suspension), where applicable collective bargaining agreements require investigation by employee relations, or where the time limitations applicable to disciplinary proceedings may be implicated prior to the conclusion of the investigation.
In conducting investigations, the Investigator will consider relevant laws, policies and procedures, documentation, and information obtained from the complainant, respondent(s), and third-party witnesses. The standard of proof in complaints made under this Procedure is by a preponderance of the evidence (more likely than not) regardless of whether or not the allegations would also constitute a crime. The timeframe for investigating a report of discrimination will depend upon the complexity of the investigation, but should not exceed sixty (60) days absent good cause. At the conclusion of an investigation, the Investigator will provide their findings in a written report, which will include a recommended outcome.
The following are potential outcomes of a complaint investigation:
- The matter is resolved between the parties and there are no other issues requiring University involvement;
- The complainant elects to withdraw the complaint or requests that there be no further investigation, and there are no other factors which require continuation of the investigation;
- There is insufficient evidence to support a finding of a violation of the SUNY Empire policies against discrimination and harassment;
- The preponderance of the evidence supports a finding of a violation of the SUNY Empire policies against discrimination and harassment.
The parties to a complaint will receive notice of the outcome of the investigation, including a copy of the Investigator’s report.
If the evidence supports a finding that a violation of law or policy occurred, the Investigator will recommend appropriate action to the University president or designee to remedy such violation(s). If the president is the respondent, the findings and recommendation shall be submitted to the SUNY Chancellor or Chancellor’s designee, who will act in place of the president.
i. For students: The president or designee may determine that sufficient information exists to refer the matter to the student conduct, or other appropriate disciplinary body for review, and appropriate action under the appropriate student conduct code. The potential outcomes may include reprimand, disciplinary suspension, disciplinary expulsion, or educational courses or activities.
ii. For employees (including student employees) not in a collective bargaining unit: The president or designee may take such administrative action as they deem appropriate under their authority as the chief administrative officer of the university, including but not limited to, termination, demotion, reassignment, suspension, reprimand, or training.
iii. For employees in collective bargaining units: The president or designee may determine that sufficient information exists to refer the matter to their designee for investigation and disciplinary action, or other action as may be appropriate under the applicable collective bargaining agreement. The potential outcomes may include a reprimand, suspension, termination, training, reassignment, fine, demotion, or informal or formal counseling.
The action of the president or designee shall be final, unless further proceedings under the student code of conduct or applicable collective bargaining agreement are implicated. If the president is the respondent, the Chancellor or 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 Procedure.
Notice of outcome: Following final determination and/or action, the president or designee shall issue a letter to the complainant and to the respondent(s) advising them that the matter, for purposes of this Procedure, is closed. In cases of sex discrimination, notice of outcome will include the sanctions, as appropriate.
G. Cases of Sex Discrimination
Sex discrimination includes sexual harassment, sexual violence and/or interpersonal violence, which all may be addressed under this Procedure or the campus’ Title IX policy, depending on whether the alleged conduct meets the definition found at 34 CFR § 106.30. Complaints or reports of sex discrimination will be referred to the campus’ Title IX Coordinator, who may consult with the AAO. The Title IX Coordinator (when the reporting individual is a student) or the AAO (when the reporting individual is an employee, volunteer or contractor) will provide to the complainant written or electronic information describing the available options, including pursuing a criminal complaint with a law enforcement agency, pursuing a complaint using this Procedure (including possible referral to the Title IX process), or pursuing both options at the same time. Additionally, the Title IX Coordinator will ensure that complainants in sex discrimination cases are made aware of their Title IX rights, available remedies and resources on and off-campus (such as counseling, local rape crisis center), and interim measures of protection. For more information, see the Victim/Survivor Bill of Rights. Assistance will be available whether or not a formal complaint is filed. To privately view policy information and obtain contact information for campus-specific, off-campus, community, and state-wide resources, visit http://response.suny.edu.
When SUNY Empire has knowledge of an allegation of Title IX Sexual Harassment, the investigation shall proceed pursuant to the campus Title IX Grievance policy.
When a campus has notice of allegations or incidents of sexual harassment that fall outside of the definition set forth in 34 CFR § 106.30, the Title IX Coordinator will make reasonable efforts to investigate, regardless of complainant cooperation and involvement, consistent with the Sexual Violence Prevention and Response Policy.
H. Interim Measures
The University may implement interim measures when needed to stabilize the situation, prevent continuing misconduct, support the parties, and protect the integrity of the investigation. Whenever possible, interim measures will be structured so they do not disproportionately impact either party. Interim measures for students may include, but are not limited to, information about how to obtain counseling and academic assistance in the event of sexual assault, and steps to take if the accused individual lives on campus and/or attends class with the complainant. The AAO and the Director of Student Life will work together to develop and implement interim measures for students. Interim measures involving employees in collective bargaining units should be determined in consultation with the campus human resources or employee relations department.
Applicable Legislation and Regulations
New York State Human Rights Law, available on the New York State Division of Human Rights website,
or in PDF format from the same site.
Title IX of the Education Amendments of 1972, Federal Law
Related guidance available with the United States Department of Education Office for Civil Rights Publications page
[All of the laws that are available on the U.S. Equal Employment Opportunity Commission website, the federal agency with oversight of the laws]
Title VII of the Civil Rights Act of 1964
The Age Discrimination in Employment Act of 1967
Titles I and V of the Americans with Disabilities Act of 1990 (ADA)
The Pregnancy Discrimination Act
Related References, Policies, Procedures, Forms and Appendices
Related References, Policies, Procedures, Forms and Appendices
Title IX Grievance Policy
Non-Discrimination/Anti-Harassment Policy
Sexual Harassment Policy
SUNY Empire Policies on Sexual Violence Prevention and Response
Available on the Sexual Violence Prevention Workgroup website
Includes: Definition of Affirmative Consent, Policy for Alcohol and/or Drug Use Amnesty in Sexual Violence Cases, Campus Climate Assessment Policy, Sexual Violence Victim/Survivor Bill of Rights, Sexual Violence Response Policy, Options for Confidentially Disclosing Sexual Violence, and Student Onboarding and Ongoing Education Guide
SUNY Policy Doc. No. 6502, Equal Opportunity: Access, Employment and Fair Treatment in the State University of New York
SUNY Empire Policy Doc. No.1200.021, Mandatory Child Sexual Abuse Reporting and Prevention Policy
Forms
Form A - Charge of Discrimination
Form B - Template for Memorandum Outlining Mutual Agreement Between Parties
Appendices
Appendix A - External Enforcement Agencies