I:01:22 Discrimination and Harassment Based on Protected Categories Other Than Sex
The purpose of this policy, as promulgated by Tennessee Board of Regents’ Guideline P-080, is to provide for the orderly resolution of complaints of discrimination or harassment on the basis of race, color, religion, ethnic or national origin, disability, age (as applicable), status as a protected veteran, genetic information, and/or any other legally protected class. Such discrimination and harassment are strictly prohibited by Middle Tennessee State University (“MTSU”).
Complaints related to sexual misconduct, sexual discrimination, and sexual harassment (including claims based on pregnancy, sexual orientation, or gender identity/expression) should be addressed under the procedures set forth in MTSU Policy I:01:23, Misconduct, Discrimination, and Harassment Based on Sex (Including Pregnancy, Sexual Orientation, and Gender Identity/Expression and this policy shall not apply to such complaints. Fair and prompt consideration shall be given to all complaints in accordance with the procedures set forth below.
A. These procedures shall be utilized by:
1. Any employee or student who has been a victim of discrimination or harassment on the basis of race, color, religion, ethnic or national origin, disability, age (as applicable), status as a protected veteran, genetic information, and/or any other category protected by federal or state civil rights laws that apply to MTSU;
2. Any former employee or student who has been a victim of discrimination or harassment on the basis of race, color, religion, ethnic or national origin, disability, age (as applicable), status as a protected veteran, genetic information, and/or any other category protected by federal or state civil rights laws that apply to MTSU if the conduct took place during the time of employment or enrollment at MTSU;
3. Any employee or student who has knowledge of discrimination or harassment on the basis of race, color, religion, ethnic or national origin, disability, age (as applicable), status as a protected veteran, genetic information, and/or any other category protected by federal or state civil rights laws that apply to MTSU against another employee or student in order to report such offenses; and,
4. All third parties with whom MTSU has an educational or business relationship who have been a victim of discrimination or harassment on the basis of race, color, religion, ethnic or national origin, disability, age (as applicable), status as a protected veteran, genetic information, and/or any other category protected by federal or state civil rights laws that apply to MTSU when the conduct has a reasonable connection to the institution.
B. This policy is adopted specifically to address the offenses defined herein.
C. All forms of sexual discrimination and/or harassment, including specifically sexual misconduct, sexual discrimination, and sexual harassment (including pregnancy, sexual orientation, and gender identity/expression) are also strictly prohibited and are subject to the procedures described in MTSU Policy I:01:23 Misconduct, Discrimination, and Harassment Based on Sex (Including Pregnancy, Sexual Orientation, and Gender Identity/Expression .
All employees, including faculty members, and students shall be knowledgeable of policies and guidelines concerning discrimination and harassment. All faculty members, students, and staff are subject to this policy. Any faculty member, student or staff member found to have violated this policy by engaging in behavior constituting discrimination or harassment will be subject to disciplinary action which may include dismissal, expulsion or termination, or other appropriate sanction.
In addition, contractors, vendors, and other third parties are also subject to this policy and are expected to comply with the requirements set forth herein. Any contractor, vendor, or other third party who fails to comply with this policy is subject to all remedies available under any applicable contract and subject to permanent removal from the MTSU campus or all MTSU controlled properties.
The procedures set forth in this policy do not only apply to conduct that occurs on campus and/or on property controlled by MTSU. If a complaint is filed under this policy, it will be investigated regardless of whether the conduct occurred off school grounds in order to determine whether the continuing effects of the off-campus conduct are having adverse effects on MTSU’s educational environment.
This policy shall not be construed or applied to restrict academic freedom, nor shall it be construed to restrict constitutionally protected expression, even though such expression may be offensive, unpleasant, or even hateful.
III. MANDATORY REPORTING AND COOPERATION
Using the procedures outlined in Section VII below, faculty and staff must promptly report to the appropriate institutional contact any complaint or conduct that might constitute discrimination or harassment as defined by this policy, whether the information concerning a complaint is received formally or informally. Failure to do so may result in disciplinary action up to and including termination.
All faculty and staff members are required to cooperate with investigations of alleged discrimination or harassment. Failure to cooperate may result in disciplinary action up to and including termination. Students are also required to cooperate with these investigations and failure to do so may result in disciplinary action up to and including expulsion.
IV. MANDATORY TRAINING
Because the courts have imposed strict obligations on employers with regard to discrimination and harassment, MTSU will offer periodic training for employees regarding conduct that could violate this policy. All employees, including faculty members, are expected to participate in this training. Further, all faculty members, students and staff are responsible for taking reasonable and necessary action to prevent and discourage all types of discrimination and harassment.
Discrimination may occur by:
1. Treating individuals less favorably because of their race, color, religion, ethnic or national origin, disability, age (as applicable), status as a protected veteran, genetic information, or any other category protected by federal or state civil rights law; or
2. Having a policy or practice that has a disproportionately adverse impact on protected class members.
Harassment is conduct that is based on a person’s race, color, religion, ethic or national origin, disability, age (as applicable), status as a protected veteran, genetic information, or any other category protected by federal or state civil rights law, that:
1. Adversely affects a term or condition of an individual’s employment, education, or participation in MTSU’s activities or learning or working environment;
2. Has the purpose or effect of unreasonably interfering with an individual’s employment or academic performance or creating an intimidating, hostile, offensive or abusive environment to the individual; or
3. Is used as a basis for, or a factor in, decisions that tangibly affect that individual’s employment, education, or participation in MTSU’s activities or learning or working environment.
Examples of such conduct include, but are not limited to, verbal or physical conduct relating to an employee’s national origin, race, surname, skin color or accent; offensive or derogatory jokes based on a protected category; racial or ethnic slurs; unwelcome comments about a person’s religion or religious garments; offensive graffiti, cartoons or pictures; or offensive remarks about a person’s age.
Not every act that might be offensive to an individual or a group will be considered harassment. Whether the alleged conduct constitutes harassment depends upon the record as a whole and the totality of the circumstances, such as the nature of the conduct in the context within which the alleged incident occurs. Harassment does not include verbal expressions or written material that is relevant and appropriately related to course subject matter or curriculum.
1. The following procedures are intended to protect the rights of the aggrieved party (hereinafter, "the Complainant") as well as the party against whom a complaint of discrimination or harassment is lodged (hereinafter "the Respondent"), as required by state and federal laws. Each complaint must be properly and promptly investigated and, when warranted, appropriate disciplinary action taken against the respondent.
2. The MTSU Office of the University Counsel shall always be consulted prior to investigation.
3. In situations that require immediate action because of safety or other concerns, MTSU will take any administrative action that is appropriate, e.g., administrative leave with pay pending the outcome of the investigation. Students may be placed on interim suspension under the appropriate circumstances and in accordance with MTSU Policy III:00:03 Student Disciplinary Rules pending the outcome of the investigation. The University Counsel shall be contacted before any immediate action is taken.
B. Filing Complaints
1. Any current or former student, applicant for employment, current or former employee, contractor or third party who believes he/she has been subjected to discrimination or harassment covered by this policy or who believes that he/she has knowledge of discrimination or harassment taking place shall present the complaint to one of the offices designated below:
Complaints against students:
Complaints against employees, contractors, or third parties:
2. Complaints must be brought within 365 days of the last incident of discrimination or harassment. Complaints brought after that time period will not be pursued absent extraordinary circumstances. The determination of whether the complaint was timely or whether extraordinary circumstances exist to extend the complaint period shall be made in conjunction with the University Counsel.
3. Every attempt will be made to get the complainant to provide the complaint in writing. The complaint shall include the circumstances giving rise to the complaint, the dates of the alleged occurrences, and names of witnesses, if any. The complaint shall be signed by the complainant. However, when the complainant chooses not to provide or sign a written complaint, the matter will still be investigated and appropriate action taken.
In the event that a complainant decides that he/she does not want to pursue the complaint or makes the complaint anonymously, the investigator will, in consultation with the Office of the University Counsel, determine whether to continue to pursue the complaint to the extent that it can, consistent with the complainant’s request.
In making this determination, the following factors should be considered:
a. Whether there have been other discrimination and/or harassment complaints about the same alleged perpetrator;
b. Whether the alleged perpetrator has a history of arrests or records from a prior school indicating a history of misconduct, discrimination, or harassment;
c. Whether the alleged perpetrator threatened discrimination and/or harassment or other misconduct against the complainant or others;
d. Whether the discrimination and/or harassment was committed by multiple perpetrators;
e. Whether the discrimination and/or harassment was perpetrated with a weapon;
f. Whether the victim is a minor;
g. Whether MTSU possesses other means to obtain relevant evidence of the discrimination and/or harassment; or
h. Whether the complainant’s report reveals a pattern of perpetration at a given location or by a particular group.
Any such request will be evaluated in the context of MTSU’s responsibility to provide a safe and nondiscriminatory environment for all students. At all times, the investigator shall pursue necessary measures to remedy the effects of any harassment, prevent retaliation, and protect other members of the educational community to the extent possible.
4. The investigator shall notify the complainant of resources available to him/her, such as counseling, health services, interim protective measures, and his/her right to file a complaint with the appropriate law enforcement agency. The investigator will continuously assess what resources might be beneficial to the complainant and advise complainant of the availability of those resources throughout the investigation process.
5. If the facts alleged in the complaint do not constitute legally actionable discrimination or harassment, the investigator may dismiss the complaint without further investigation after consultation with University Counsel.
1. MTSU will initiate an investigation of all complaints making allegations of potential violations of this policy. Such investigation will be prompt, thorough, and impartial. Further, even absent a formal complaint, MTSU may investigate any conduct that might be found to violate this policy under the procedures set forth below if it learns of such conduct in a timely manner.
2. The University Counsel shall be notified of the complaint, whether written or verbal, as soon as possible after it is brought to the attention of the investigator and the investigation will be under the direction of the University Counsel. All investigatory notes and documents shall be attorney work product. The investigator also shall notify the President and any appropriate coordinator (i.e., Title VI, Title IX, or ADA/Section 504) that an investigation is being initiated.
3. When the allegation of discrimination or harassment is against the Executive Director of the Office of Institutional Equity and Compliance, the Assistant Dean of Judicial Affairs and Mediation Services, or the Title VI, Title IX, or ADA/Section 504 Coordinator, the President will identify an individual who has been trained in investigating such complaints to investigate the complaint and carry out the responsibilities assigned pursuant to this policy. When the allegation of discrimination or harassment is against the President, the Executive Director of the Office of Institutional Equity and Compliance shall notify the Tennessee Board of Regents Office of the General Counsel who will assign an investigator who will make his/her report to the Chancellor.
4. When the respondent is a student, Judicial Affairs and Mediation Services will investigate the complaint in compliance with the procedures outlined in this policy. If a finding of violation is made, any resulting disciplinary action will be undertaken in compliance with MTSU’s student disciplinary procedures.
5. When a student is involved as the complainant, the respondent, or a witness, all documentation referring to that student shall be subject to the provisions and protections of the Family Educational Rights and Privacy Act (FERPA) and Tennessee Code Annotated 10-7-504(a) (4) which requires that certain student records are not subject to disclosure pursuant to a public records request.
6. In consultation with and under the direction of the University Counsel, the investigator shall conduct an investigation of the complaint. This investigation shall include interviews with both the complainant and the respondent, unless either declines an in-person interview. The investigation shall also include interviews of relevant witnesses named by the complainant and respondent. The purpose of the investigation is to establish whether there has been a violation of this policy. It is the responsibility of the investigator to weigh the credibility of all individuals interviewed and to determine the weight to be given to information received during the course of the investigation.
7. To the extent possible, the investigation will be conducted in such a manner to protect the confidentiality of both parties. However, the complainant, respondent and all individuals interviewed shall be informed that MTSU has an obligation to address discrimination or harassment and that, in order to conduct an effective investigation, complete confidentiality cannot be guaranteed. Information may need to be revealed to the respondent and to potential witnesses. However, information about the complaint should be shared only with those who have a need to know about it. The complainant and respondent shall also be informed that a request to inspect documents made pursuant to the Public Records Act may result in certain documents being released.
Complainant may be informed that if he/she wants to speak privately and in confidence about discrimination or harassment, he/she may wish to consult with a licensed social worker, counselor, therapist or member of the clergy who is permitted, by law, to assure greater confidentiality.
8. The investigator shall notify the respondent in writing within five (5) working days of receipt of the complaint. The respondent may respond in writing to the complaint within five (5) working days following the date of receipt of the investigator’s notification.
9. If either the complainant or the respondent is a student, the investigator should communicate the prohibition against disclosure of personally identifiable information with regard to the student, based on FERPA.
10. The complainant, the respondent and all individuals interviewed shall be notified that any retaliation engaged in connection with the complaint or its investigation is strictly prohibited regardless of the outcome of the investigation. Any retaliation should be reported to the investigator immediately. In the event that MTSU learns of any retaliation against anyone involved in an investigation under this policy, it will be investigated pursuant to the procedure set out in this policy and any individual found to have engaged in any form of retaliation will be subject to discipline.
11. At any time during the course of the investigation, the investigator may meet with both the complainant and the respondent individually for the purpose of resolving the complaint informally. Either party has the right to end informal processes at any time. If informal resolution is successful in resolving the complaint, a report of such, having first been reviewed and approved by the University Counsel, shall be submitted to the President.
12. If informal resolution is not attempted or is unsuccessful, the investigator shall draft a report summarizing the investigation which shall be sent to the University Counsel for review. Each report shall outline the basis of the complaint, including the dates of the alleged occurrences, the response of the respondent, the findings of the investigator, whether there were any attempts made to resolve the complaint informally, a determination of whether there was a violation of this policy, and recommendations regarding disposition of the complaint No working papers, statements, etc. generated in the investigation should be attached to the report..
After review and approval by the University Counsel, the report shall be submitted to the President within sixty (60) calendar days following receipt of the complaint, absent cause for extending the investigation timeline. In situations where more time is needed to complete the investigation, for reasons such as difficulty in locating a necessary witness, or complexity of the complaint, additional time may be taken, but only following notice to the University Counsel and written notice to both the complainant and the respondent.
13. If, after investigation, there is insufficient evidence to corroborate the complaint or, in any situation in which the complainant refuses to cooperate in the investigation, it may be appropriate to discuss the complaint with the respondent, informing him/her that he/she is not being accused of a violation of this policy, but that the conduct alleged, had it been substantiated, could be found to violate this policy. Any investigation and subsequent discussion should be documented and a report submitted as set forth in this procedure. It should also be noted that conduct that does not constitute legally actionable discrimination or harassment may, nevertheless, provide a basis for disciplinary action against the respondent.
14. The President shall review the investigator’s report and shall make a final written determination within a reasonable time as to whether a violation of this policy occurred and what the appropriate resolution should be. After the President has made this determination, the investigator shall, absent unusual circumstances and after consultation with the University Counsel, separately notify both the complainant and the respondent of the outcome of the investigation.
The notice provided to the respondent shall include the finding of whether the respondent was found to have violated this policy and any sanctions imposed against him/her. The notification to the complainant shall include notice of whether the respondent was found to have violated this policy and, if so, notice of only those sanctions imposed against the respondent that directly relate to the complainant.
15. If the investigation reveals evidence that a violation of this policy has occurred, the President will take immediate and appropriate corrective action. Such action may include meeting with the respondent and/or the complainant and attempting to resolve the problem by agreement. Appropriate steps must be taken to ensure that the discrimination or harassment will not reoccur.
16. After completion of the investigation and any subsequent disciplinary proceedings, all documentation shall be forwarded to the University Counsel. However, copies of the President’s determination, the investigator’s report, the complaint (if it concerns an employee) and documentation of any disciplinary action taken against the respondent should be placed in a file maintained by the investigator. Copies of documentation establishing disciplinary action taken against the respondent, if any, whether an employee or student, shall also be maintained in the respondent’s personnel or student record, as appropriate.
Some documents may be subject to the Public Records Act and thus open to public inspection. Other documents may be protected under FERPA, the attorney/client privilege, or attorney work product and would not be subject to release. If a Public Records request is received, the University Counsel shall be consulted prior to the release of any documents.
17. A complaint found to have been intentionally dishonest or maliciously made will subject the complainant to appropriate disciplinary action.
VII. OTHER APPLICABLE PROCEDURES
If the President’s decision includes disciplinary action, the procedures for implementing the decision shall be determined by the applicable policies relating to discipline (e.g., employee grievance/complaint procedure, student disciplinary policies, academic affairs policies).
An aggrieved individual may also have the ability to file complaints with external agencies such as the Equal Employment Opportunity Commission (EEOC), the Tennessee Human Rights Commission (THRC), the Office for Civil Rights (OCR), and the courts. Please note that the deadlines for filing with external agencies or courts may be shorter than the deadline established for filing a complaint under this policy.
Revisions: December 17, 1998; November 5, 2001; January 28, 2008; March 18, 2012; August 6, 2015.
Cross-references: TBR Guideline P-080; MTSU Policies I:01:23, III:00:03,; Family Educational Rights and Privacy Act; T.C.A. § 10-7-504(a) (4); Public Records Act.