Policy 040.30 - Affirmative Action, Equal Opportunity, and Sexual Harassment

  This Replaces
File: 040.30 040.30
Date: 3/1/13 3/29/11

ORIGINATOR: President

SUBJECT: Policy and Procedures on Affirmative Action, Equal Opportunity, and Sexual Harassment

  1. Policy
    University of Maryland University College (UMUC) supports the University System of Maryland's (USM) Policy on Affirmative Action and Equal Opportunity (VI-1.00) approved by the Board of Regents on October 19, 1989, the USM Policy on Sexual Harassment (VI-1.20) approved by the Board of Regents on June 5, 1992, and the State of Maryland's Equal Employment Opportunity Program. In accordance with the USM's Policies and the State's Program, UMUC is committed to eliminating discrimination and harassment on the basis of race, religion, color, creed, gender (including sexual harassment), marital status, age, national origin, ancestry, political affiliation, mental or physical disability, sexual orientation, gender identity and expression, or veteran status, consistent with applicable federal, state, and local laws. This Policy is established to prevent or eliminate such discrimination and harassment in accordance with due process while protecting the rights of students, faculty and staff. It represents UMUC's response to the need to establish policies and procedures that will ensure the existence of equal opportunity. In accordance with this commitment, UMUC has created this Policy and Procedures to:
    1. Eliminate discrimination and harassment in employment and education programs,
    2. Establish a procedure for the identification and elimination of discriminatory policies, procedures, and actions, and
    3. Establish and disseminate grievance procedures for alleged violations of this Policy and Procedures.
  2. Application of Policy and Procedures
    1. Inquiries concerning policies or plans with respect to equal opportunity and affirmative action shall be directed to either UMUC's Fair Practices Officer ("FPO") or to the Equal Opportunity Officer ("EOO") appointed for Adelphi based operations, the European Division, or the Asian Division, as appropriate (collectively, the "Compliance Team").
    2. This UMUC Policy and Procedures is applicable to all UMUC students, faculty, staff, contractors, and third parties engaging in educational, employment, or business activities or programs.
    3. Complaints under this Policy and Procedures may be filed by UMUC students, faculty, staff, and third parties (including applicants for employment) engaging in educational, employment, or business activities or programs.
    4. UMUC can prevent discrimination and harassment, including sexual harassment, in the workplace and educational programs only if the members of the UMUC community are willing to come forth with complaints. Employees have an affirmative duty, and students are encouraged, to report immediately to a member of the Compliance Team any behavior that they believe may be in violation of this Policy and Procedures.
    5. This Policy and Procedures prohibits the following and provides for procedures to address such unlawful behavior:
      1. Discrimination and harassment in employment, job placement, promotion, or other economic benefits on the basis of race, religion, color, creed, gender, marital status, age, national origin, political affiliation, mental or physical disability, or sexual orientation.
      2. Discrimination and harassment in participation in, criteria of eligibility for admission to, or successful completion of educational, social, cultural, or other activities of UMUC because of race, religion, color, creed, gender, marital status, age, national origin, political affiliation, mental or physical disability, or sexual orientation.
      3. Sexual harassment, a form of gender discrimination, which, for the purpose of this Policy and Procedures, is defined as unwelcome sexual advances or requests for sexual favors and other behavior of a sexual nature where:
        1. Submission to such conduct is made, either explicitly or implicitly, a term or condition of an individual's employment by UMUC or an individual's participation in a UMUC educational program;
        2. Submission to or rejection of such conduct by an individual is used as the basis for employment or academic decisions affecting the individual; or
        3. Such conduct has the purpose or effect of unreasonably interfering with an individual's work or academic performance, or of creating an intimidating, hostile or offensive work or educational environment at UMUC.

        Examples of sexual harassment include, but are not limited to, unwelcome sexual advances, requests for sexual favors and other verbal, non-verbal, or physical conduct of a sexual nature that is objectively offensive and severe, persistent, or pervasive. Sexual harassment may occur between people of the same or different genders. It may occur between a faculty member and a student, an employee and a student, a student and another student, and a student and any person with whom the student must interact in order to participate in the student's educational program or activity. Sexual harassment may also occur between supervisor and employee, employee and employee, and employee and any person with whom the employee must interact in order to perform the employee's duties and responsibilities.

    6. Exceptions to this Policy and Procedures are as follows:
      1. The application of federal, state or county laws and regulations does not constitute prohibited discrimination for purposes of this Policy and Procedures.
      2. The procedures under this Policy and Procedures shall not apply to decisions concerning academic performance of students (e.g., grades). Students shall file grade appeals in accordance with UMUC Policy 130.8 - Procedures for Review of Alleged Arbitrary & Capricious Grading.
      3. In its overseas operations, UMUC will not be required to comply with state and federal laws to the extent that those laws do not apply outside the boundaries of the United States
    7. A Complainant who files a complaint subject to review under this Policy and Procedures will be required to elect to proceed under this Policy and Procedures and may not bring the complaint for review under any other UMUC or USM policies or other statutory or non-statutory grievance procedures.
    8. To the extent that the applicable state and federal laws apply, this Policy and Procedures applies to all UMUC locations and all UMUC faculty, staff, applicants for employment, and students.
    9. In assessing whether a particular act constitutes discrimination, harassment, or other behavior prohibited by this Policy and Procedures, the University will look at the totality of the circumstances, and the standard will be the perspective of a reasonable person within the University community.
  3. Responsibilities Of The Compliance Team
    1. The Compliance Team operates as a unit of the President's Office. There shall be a FPO for UMUC and EOOs for Adelphi-based operations, the European Division, and the Asian Division respectively (each a "UMUC Division"). The FPO supervises the operation of the Compliance Team and reports directly to the President. The EOOs report to the FPO and through the FPO to the President.
    2. The FPO shall:
      1. Implement this Policy and Procedures within UMUC,
      2. Accept, investigate and, as appropriate, resolve complaints filed under this Policy and Procedures,
      3. Delegate matters to the EOOs as appropriate,
      4. Monitor all personnel actions adopted by UMUC, and
      5. Attest that procedures are consistent with state and federal equal opportunity laws.
    3. The EOOs shall, as delegated by the FPO, accept, investigate and, as appropriate, resolve complaints filed under this Policy and Procedures.
    4. The resolution of complaints may require approval from UMUC officials and the Office of the Attorney General, as appropriate.
  4. Complaint Procedures:
    1. An individual claiming to be aggrieved by unlawful discrimination prohibited by this Policy and Procedures ("Complainant") may bring the circumstances to the notice of the FPO or the EOO serving the UMUC Division, as appropriate.
    2. Initial Steps
      1. A Complainant must contact an appropriate Compliance Team member within 30 days after the Complainant first knew of or reasonably should have known of the alleged violation that is the basis for the complaint, and give notice of the charge of unlawful discrimination.
      2. The Compliance Team member and the Complainant shall discuss the basis of the charge and complete an Intake Form setting out the facts and circumstances of the charge. The Compliance Team member shall provide the completed Intake Form to the Complainant for his/her review and signature.
      3. The Compliance Team member shall notify the person against whom a charge of unlawful discrimination is made ("Respondent") and discuss the charge as soon as practicable.
    3. When a Compliance Team member receives notice of potential unlawful discrimination, the Compliance Team member may proceed with these complaint procedures without a Complainant. In the absence of a Complainant, the Compliance Team member shall act in the place of a Complainant throughout this Policy and Procedures, complete an Intake Form and notify the Respondent of the charge.
    4. Informal Process:
      The Compliance Team member may try to resolve a charge of discrimination informally at this stage of the process. Informal resolution will be pursued only with the consent of the Complainant and Respondent. A resolution of a matter informally requires the approval of the Complainant as to his/her remedy, of the Respondent as to any sanction and of the Compliance Team member as to both.
    5. Formal Process:
      1. If the charge is not resolved informally in a timely manner , the Compliance Team member will obtain a Formal Complaint from the Complainant.
      2. A Formal Complaint shall:
        1. Include a statement from the Complainant,
        2. State the allegations, including when and where the alleged violation took place,
        3. Identify the Respondent,
        4. State the name of any witnesses to the alleged violation,
        5. State the relief being requested, and
        6. Provide a telephone number and address where the Complainant or a representative can be contacted.
      3. If required, the FPO will notify the Secretary of the Department of Budget and Management ("the Secretary") or designee of the Formal Complaint.
      4. Formal Complaints shall be provided to the Respondent within 5 business days of the filing of the Formal Complaint.
      5. The Respondent shall provide a response to the Formal Complaint to the Compliance Team member within 5 business days after it was received.
      6. The Compliance Team member shall investigate the allegations of the Formal Complaint.
      7. During the investigation, the Compliance Team member may administer oaths, obtain affidavits, conduct interviews, and obtain relevant information necessary to investigate and resolve the issues presented by the Complainant.
        1. All employees shall cooperate fully with a discrimination or harassment investigation. Each individual shall produce documentary or testimonial evidence requested by the Compliance Team member.
        2. An employee who fails to cooperate during an investigation, provides false information, obstructs, or in any way impedes an investigation shall be subject to disciplinary action, up to and including termination.
        3. When the Complainant, the Complainant's unit, or one of UMUC's employees fails without good cause to respond fully and in a timely manner to requests for documents, records of comparative data, statistics, affidavits, or the attendance of witnesses, the Compliance Team member shall make a note of the failure so that appropriate action may be taken in accordance with statute.
      8. After a Formal Complaint is investigated by a Compliance Team member, the Compliance Team member will take the following action:
        1. If the Respondent is a faculty or staff member or a third party, the Compliance Team member will prepare a written report. The report will include: (i) a statement of relevant acts that occurred; (ii) a determination of whether discrimination or harassment occurred; and (iii) a recommendation for appropriate remedies and disciplinary action, if appropriate. The report also may be circulated confidentially to UMUC legal counsel and the appropriate vice president, vice provost or dean.
          1. If the Complainant is a faculty or staff member or an applicant for employment, the Compliance Team member will submit the report to the President. Within 30 days after the complaint was received, the President will issue a written decision to the Complainant and Respondent and take appropriate action, which may include disciplinary action up to and including suspension or termination of employment or a contract with a third party.
          2. If the Complainant is a student, the Compliance Team member will submit the report to the Provost. Within 30 days after the complaint was received, the Provost will issue a written decision to the Complainant and Respondent and take appropriate action, which may include disciplinary action up to and including suspension or termination of employment or a contract with a third party.
          3. If the Complainant is a third party (other than an applicant for employment), the Compliance Team member will submit the written report as follows:
            1. If the Respondent is a staff member or a third party, the Compliance Team member will submit the written report to the Senior Vice President or appropriate overseas Vice President and Director. Within 30 days after the complaint was received, the Senior Vice President or appropriate overseas Vice President and Director shall issue a written decision to the Complainant and Respondent and take appropriate action, which may include disciplinary action up to and including suspension or termination of employment or a contract with a third party.
            2. If the Respondent is a faculty member, the Compliance Team member will submit the written report to the Provostor appropriate overseas Vice President and Director. Within 30 days after the complaint was received, the Provost or appropriate overseas Vice President and Director will issue a written decision to the Complainant and Respondent and take appropriate action, which may include disciplinary action up to and including suspension or termination of employment or a contract with a third party.
        2. If the Respondent is a student,
          1. The Compliance Team member will report a suspected violation of this Policy and Procedures to the Provost or designee for adjudication by an investigation committee in accordance with UMUC Policy 151.0 - the Code of Student Conduct. The complaint of discrimination or harassment will not be processed further under this Policy and Procedures.
          2. If the Complainant is a student and the Compliance Team member determines that this Policy and Procedures has not been violated, the Compliance Team member will prepare a written report recommending a proposed determination to the Provost or designee. This report also may be circulated confidentially to UMUC legal counsel and the appropriate vice president, vice provost or dean. If the Provost determines that there is no violation of this Policy and Procedures, s/he will issue a written decision to the Complainant and Respondent. If the Provost determines that there is a suspected violation, s/he will submit the matter for adjudication by an investigation committee in accordance with UMUC Policy 151.0 – the Code of Student Conduct.
          3. If the Complainant is a faculty or staff member or a third party and if the Compliance Team member determines that this Policy and Procedures has not been violated, the Compliance Team member will prepare a written report recommending a proposed determination to the President or designee. This report also may be circulated confidentially to UMUC legal counsel and the appropriate vice president, vice provost or dean. If the President determines that there is no violation of this Policy and Procedures, s/he will issue a written decision to the Complainant and Respondent. The decision of the President is final. If the President determines that there is a suspected violation, s/he will forward the matter to the Provost as referenced in subsection (i) above.
  5. Appeal Procedures:
    1. If the Complainant is a faculty or staff member or an applicant for employment and the Respondent is a faculty or staff member, the Complainant may appeal the written decision of the President, within 10 days after receiving the decision, in writing to the Secretary of the Department of Budget and Management, whose address is 45 Calvert Street, Annapolis, Maryland 21401. The appeal will be adjudicated in accordance with Md. Code Ann., State Pers. & Pens. § 5-213.
    2. If the Complainant is a student, the Complainant may appeal the written decision of the Provost to the President, in writing, within 5 business days after receiving the decision. Within 30 days after receiving the appeal, the President will issue a written decision to the Complainant and Respondent and take appropriate action.
    3. If the Complainant is a third party (other than an applicant for employment) and the Respondent is a faculty or staff member or a third party, the Complainant may appeal the written decision of the Senior Vice President, Provost, overseas Vice President and Director, as appropriate, to the President, in writing, within 5 business days after receiving the decision. Within 30 days after receiving the appeal, the President will issue a written decision to the Complainant and Respondent and take appropriate action.
    4. Respondents can address a determination under this Policy and Procedures through applicable UMUC and USM policies and procedures.
  6. Confidentiality:
    UMUC will protect the confidentiality of complaints brought under this Policy and Procedures and the parties involved except to the extent that UMUC's ability to conduct an effective investigation is jeopardized or as otherwise provided by law, including, but not limited to, the Maryland Public Information Act and any lawfully issued subpoena. Complainants, Respondents, witnesses and all persons involved in investigations or in resolving a complaint of discrimination or harassment, shall make good faith efforts to keep confidential all information relating to a complaint. Failure to exercise good faith efforts in maintaining confidentiality may result in disciplinary actions and/or other serious sanctions.
  7. Filing Complaints with Outside Agencies:
    In addition to filing a complaint under this Policy and Procedures, faculty, staff and applicants may contact external agencies including the Equal Employment Opportunity Commission (EEOC) or the Maryland Commission on Civil Rights. Students may contact the Office for Civil Rights (OCR). A person wishing to file a complaint with an external agency should contact the appropriate agency promptly in order to verify the time limits and deadlines for filing complaints.
  8. Non-Retaliation Statement:
    Retaliation by UMUC faculty, staff, students, or contractors against an individual who makes a complaint of discrimination or sexual harassment, participates in an investigation of a complaint, supports a complaint, or testifies concerning a complaint is expressly prohibited by this Policy and Procedures. Any UMUC faculty, staff, or student who encounters retaliation should immediately report such conduct to the Compliance Team member or his designee. An employee who is found to have retaliated is subject to disciplinary action, up to and including termination. A student who is found to have retaliated is subject to disciplinary action up to and including expulsion.
  9. Education of UMUC Community:
    Education is an extremely important tool in eradicating discrimination and sexual harassment from the UMUC workplace and educational programs. Training sessions in several formats can be made available to any UMUC employee or student who is interested. Employees in supervisory positions shall complete a training session as arranged by the Compliance Team member. Copies of this Policy and Procedures are available from members of the Compliance Team, in the Office of Diversity Initiatives and in the Office of Human Resources.