Discrimination Frequently Asked Questions
What is discrimination?
Prohibited discrimination and harassment is treatment based on a person’s protected class(es) that negatively impacts the person’s employment (including hiring) or educational experience and may include a hostile environment or an adverse action. Discrimination is prohibited under USU policies 303 and 305.
What is a protected class?
A protected class is a group protected by discrimination in hiring, employment, and education. Under USU Policy 305, protected classes include race, color, religion, sex, national origin, age, genetic information, sexual orientation, gender identity or expression, disability, or status as a protected veteran.
What is a hostile environment?
A hostile environment occurs when there is unwelcome conduct based on a protected class that is so severe, pervasive, or objectively offensive that it creates an intimidating, hostile, or offensive working or learning environment.
What is an adverse action?
An adverse action is one that impacts and employee’s or student’s status as an employee or student, or their prospects for promotion or advancement. Examples may include failing a student in a class or denying an employee a raise or promotion.
What are an employee’s reporting obligations related to discrimination?
Supervisors are required to report discrimination they become aware of in their unit and/or involving any individuals they supervise. Supervisors are required to report protected class discrimination and harassment if one or more of their employees are involved or it occurs in their unit. Employees should also report discrimination involving students they advise.
The Office of Equity’s jurisdiction is limited to discrimination and harassment based on a protected class that happens within a USU program or activity. The Office of Equity generally cannot address protected class discrimination that occurs outside of an education program or activity. Individuals seeking action by the Office of Equity will be required to complete a jurisdiction form after which jurisdiction will be assessed. Misconduct or harassment that are not based on a protected class is not jurisdictional for the Office of Equity and will be referred to the appropriate department or administrator for action.
Statute of Limitations
Generally, an individual seeking action by the Office of Equity must file a formal complaint within 180 days of the discrimination. With very limited exceptions, discrimination that falls out of that timeframe will not be eligible for the grievance process although the Office of Equity may be able to recommend training or other nondisciplinary steps to address the alleged discrimination.
What is a claimant?
A person who is alleged to have experienced conduct that could constitute discrimination.
What is a respondent?
An individual who is alleged to have committed discrimination.
What is a formal complaint?
A signed document that indicates the University will proceed with a formal investigation of discrimination or an earlier resolution. A formal complaint may be signed by the Claimant or, in very limited circumstances under which a University-driven investigation is appropriate, by the Executive Director.
What is the grievance process?
The process undertaken by the Office of Equity following the filing of a formal complaint through to the resolution of any appeals, which may include a formal Investigation or an earlier resolution.
What is an earlier resolution?
A process in which parties agree to resolve a formal complaint without completing an investigation and/or hearing. An earlier resolution may be facilitated through arbitration, mediation, restorative justice, or another appropriate method. Such an agreement may, but need not, include sanctions or other disciplinary measures.
What is a formal investigation?
The information and evidence-gathering process that begins with the filing of the formal complaint and ends when the final investigation report is issued. Formal investigations, conducted by the Office of Equity investigator or an investigator appointed by the University, include interviewing parties and witnesses and gathering other relevant evidence. The formal investigation is generally claimant-driven, but may be University-driven. In a formal investigation, the Record including evidence and interviews will be shared with all relevant parties and the parties will have an opportunity to respond. Following the response to the Record, a preliminary investigation report will be issued to which the parties may also respond after which a final investigation report will be issued. The final investigation report may be appealed.
What is a university-driven formal investigation?
In cases alleging serious, ongoing, or significant discrimination, or a pattern of such by the same person impacting multiple students or employees, the University may proceed with a formal investigation even in the absence of a formal complaint signed by a claimant. The University may proceed this way if the claimant(s) are willing to be interviewed and/or there are other witnesses or sources of information about the alleged discrimination. A University-driven formal investigation will generally follow the process outlined above for a formal investigation, although the Respondent will be the only party.
What is the standard of proof in a discrimination investigation, and who has the burden of proof?
The standard of proof in a discrimination case is preponderance of evidence which means that in order for the Office of Equity to find that a Respondent violated the policy, the evidence must show that it is more likely than not the Respondent engaged in a policy violation. Claimant has the initial burden of proving that Respondent engaged in the conduct and that it was based on Claimant’s protected class(es).
How long does the grievance process take?
An earlier resolution can resolve a case in a matter of weeks or a few months, while a discrimination investigation generally take several months, depending on the complexity of the case, including the number of allegations, the span of time covered by the allegations, and the number of parties/witnesses. Good cause for delay may be found for a number of reasons including: the case involves multiple claimants or respondents, numerous claims, allegations that extend over a number of months or years, or particularly complicated analyses. When good cause for delay is found, the length of the delay will be dependent upon the particular facts and circumstances of the case. Once an investigation is complete, the hearing (if the case is appealed) and sanction process can also take an additional several months. Thus, from the formal complaint to resolution, a discrimination formal investigation can take a year or longer for complete resolution.
What support is available to a person who has experienced discrimination or is involved in the discrimination grievance process?
A person who has experienced discrimination or is participating in the grievance process may access supportive measures designed to address any potential ongoing harm, including academic accommodations, No Contact arrangements, scheduling and location changes, etc. All parties also have the option to involve a process advisor and/or a support person to assist them throughout the grievance process.
What is a process advisor?
Any person, including an attorney, chosen by a party to the hearing or by the University, to advise and assist the selecting party in the formal investigation and/or hearing, including making an opening and/or closing statement on behalf of the party. A Process Advisor may be a parent, legal guardian, a USU faculty or staff member, a USU Student Association (“USUSA”) Student Advocate, an attorney, or any other person with whom a Claimant or a Respondent wishes to consult during a disciplinary proceeding; however, a Process Advisor may not also serve as a Witness. A Process Advisor may accompany a student in a disciplinary proceeding and must adhere to the rules of the proceeding.
What is a support person?
Claimants and Respondents may each have one Support Person of their choice attend Office of Equity meetings, interviews, and hearings, in order to provide emotional support. A Support Person may be a parent, legal guardian, friend, faculty member, USUSA Student Advocate, attorney, or any other person that the Claimant or Respondent would like to be present for emotional support. However, a Support Person may not also serve as a witness at either the investigation or hearing stage. The Support Person must follow all rules of the process, and may not formally participate in the process beyond providing support for the party.
What is an appeal?
The non-prevailing party may file an appeal of the final investigation report. Upon appeal, a hearing will be held with a three-person hearing panel comprised of USU employees appointed by the university and specially trained. Hearing panel members are neutral fact-finders whose role is to make a decision on the appeal. The hearing panel’s decision is reviewed by the President, who may accept or reject it.
What are the possible sanctions if a person is found to have violated USU’s discrimination policy?
An Employee Respondent who is found to have violated Policy 305 may be subject to Sanctions from a warning up to and including termination of employment. A Student Respondent who is found to have violated Policy 305 may be subject to Sanctions from a warning up to and including expulsion with a possible transcript notation.