Chapter 1: Equal Opportunity Non-Discrimination, Non-Retaliation Policy
1.1 Purpose
This chapter sets forth The University of Texas at El Paso’s (University) policies concerning equal opportunity, affirmative action, and non-discrimination, in compliance with Equal Pay Act of 1963, Title VI and Title VII of the Civil Rights Act of 1964, the Age Discrimination Act of 1975, the Age Discrimination in Employment Act of 1967, as amended, Title IX of the Education Amendments of 1972, Education Amendments, Sections 503 and 504 of the Rehabilitation Act of 1973, as amended, Section 402 of the Vietnam Veterans Act of 1974, Immigration Reform and Control Act of 1986, Title II of the Americans with Disabilities Act of 1990 (ADA), and the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), Title II of the Genetic Information Act of 2008, Department of Labor Order No. 4, Executive Order 11246, as amended, and Chapter 21 of the Texas Labor Code.
1.2 Scope
This policy applies to students, staff, faculty, job applicants, applicants for admission, and other beneficiaries of the programs, services, and activities of the University.
1.3 Policy
The University is an Equal Opportunity/Affirmative Action Employer. The University is committed to providing equal opportunity to all employees and individuals seeking employment or access to its programs, facilities, or services, and will not discriminate against these persons on the basis of race, color, national origin, sex, religion, age, disability, genetic information, veteran’s status, sexual orientation, or gender identity. In addition to this commitment, the University will take affirmative steps to ensure that applicants and employees are treated, during all aspects of employment, in a non-discriminatory manner. The University shall maintain and annually update its Affirmative Action Plan and will make good faith efforts to achieve established goals, to the extent permitted by applicable law.
An institutional commitment to these policies provides for selection procedures based upon objective, defensible qualifications like promotions based upon documented performance, merit, and potential achievement, as well as evaluations that are accurate and unbiased. In addition, the University commits itself to increased recruitment efforts to assure that qualified minorities, women, veterans, and individuals with a disability are represented in the applicant pool and are evaluated equitably by search committees and administrative personnel.
The Equal Opportunity Policy and Affirmative Action Plan shall be implemented throughout the University.
All regulations, programs, and documents required by these regulations are available for inspection by employees, applicants for employment, and the general public in the University’s Equal Opportunity (EO) Office on any workday.
Any member of the University community who engages in discrimination or other conduct in violation of this policy is subject to the full range of disciplinary action, up to and including separation from the University.
1.3.1 Religion
The University is committed to the provision of a learning and working environment free of bias for or against any religious creed, doctrine, belief, or affiliation, or the absence thereof. Further, as a state institution of higher education, the University and its employees acting in their official capacity must strictly avoid associations with, or support for, religious entities and activities which can be construed as an infringement upon the constitutional constraints upon state support for religion.
1.3.1.1 The Texas legislature has designated Rosh Hashanah, Yom Kippur, and Good Friday as optional holidays. An employee eligible for holiday leave may observe an optional holiday or other religious holidays by working on any holiday in which a skeleton crew is required or by using applicable accrued vacation leave. For guidance on employee observance of religious holidays, please see the Handbook of Operating Procedures (“Handbook”), Section V, Chapter 21 Holidays.
1.3.1.2 Students should refer to the undergraduate and or graduate University Catalogue for the policy on absence from class on religious holidays.
1.3.1.3 The University provides reasonable religious accommodations to employees, students, and individuals seeking employment or access to its programs. For guidance on employee religious accommodation requests please see the Handbook, Section V, Chapter 5 Religious Accommodation Policy. Please contact the EO Office to obtain more information about religious accommodation requests.
1.3.2 Individuals With Disabilities
The University is committed to providing services, equipment, and accommodations to individuals with documented disabilities in order to provide them with equal opportunities to participate in programs, services, and activities in compliance with Sections 503 and 504 of the Rehabilitation Act of 1973, as amended, the ADA, and the ADAAA. Refer to Handbook Section VI, Chapter 2 for the University’s policy concerning accommodations for individuals with disabilities.
1.3.3 Sexual Harassment & Sexual Misconduct
The University prohibits sexual harassment of or by its students, staff, and faculty, and is committed to the principle that the learning and working environment of its students, employees, and guests should be free from sexual harassment and inappropriate conduct of a sexual nature. Sexual harassment is a form of sex discrimination and is illegal. Sexual misconduct and sexual harassment are prohibited as a matter of institutional policy and state and federal law, and responsibility for such conduct is subject to disciplinary action. For more information on the applicability of the University’s Sexual Misconduct Policy, please refer to Handbook Section VI, Chapter 3.
1.3.4 Veterans
In accordance with Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans Readjustment Act of 1974, the University will take Affirmative Action to employ and advance in employment qualified disabled individuals, veterans, and veterans of the Vietnam Era at all levels of employment, including the executive level. Such action will apply to all employment practices, including but not limited to the following: hiring, promotion, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay, or other forms of compensation and selection for training. Compensation of a disabled veteran or Vietnam-era veteran will in no way be reduced because of any disability income, pension, or other benefits the applicant or employee receives from another source.
1.4 Resolution and Complaint Procedures
The informal resolution and formal complaint procedures set forth below are internal administrative procedures of the University. These procedures are available to any member of the University community who believes they have been discriminated against on the basis of race, color, national origin, sex, religion, age, disability, genetic information, veteran’s status, sexual orientation, or gender identity. Individuals wishing to pursue either procedure should contact the EO Office. With regard to alleged discrimination that also violates state or federal law, an aggrieved party may also file a complaint with the appropriate local, state, or federal agency, or a court of appropriate jurisdiction. These informal resolution and formal complaint procedures are supplemental to and are not intended to replace, other disciplinary procedures outlined in the University’s Handbook or the Regents’ Rules and Regulations.
1.4.1 Informal Resolution
This process may be pursued as a prelude or alternative to filing a formal complaint. It is not required that this option be pursued. Anyone who believes they have been subjected to discrimination or harassment may immediately file a formal complaint as described in 1.4.2 of this policy. An individual wishing to pursue the informal resolution process should contact the EO Office. Informal resolution may be an appropriate choice when the conduct involved is not of a serious or repetitive nature and disciplinary action is not required to remedy the situation. No formal investigation is involved in the informal resolution process. The informal resolution includes:
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Informal Assistance
The individual is provided assistance in attempting to resolve possible equal opportunity or discrimination issues if the individual does not wish to file a formal complaint. Methods of informal resolution may include, but are not limited to: coaching the person on how to directly address the situation that is causing a problem; mediating the dispute with the parties; aiding in the modification of a situation in which the offensive conduct occurred; assisting a department or division with the resolution of a real or perceived problem, or arranging a meeting with the alleged offender that involves a discussion of the requirements of the equal opportunity policy. However, if necessary, the University may take more formal action to ensure an environment free from equal opportunity violations and discrimination. EO will also inform the respective supervisor(s) in case adjustments in the work environment are needed.
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Timeframe
Informal resolutions will be completed within thirty (30) working days from receipt of a request for informal resolution.
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Confidentiality and Documentation
The University shall document informal resolutions. The EO Office shall retain such documentation. The University will endeavor to maintain confidentiality to the extent permitted by law. Relevant information will be provided only to those persons with a need to know in order to achieve a timely resolution of the request.
1.4.2 Formal Complaint Reporting
The University encourages persons who believe they have been subjected to discrimination on the basis of race, color, national origin, sex, religion, age, disability, genetic information, veteran’s status, sexual orientation, or gender identity to immediately report the incident to the EO Office. In no case will a complainant be required to report such conduct to the person accused of the misconduct. The complainant will be advised of the procedures for filing a formal complaint. When a supervisor or University employee receives a complaint alleging discrimination, they will immediately notify the EO Office. However, if a responsible employee (defined in the Sexual Misconduct Policy as “all administrators, faculty, staff, resident life directors and advisors, and graduate teaching assistants”) receives a report of sexual misconduct (as defined in the Sexual Misconduct Policy), then the responsible employee must report the incident(s) in accordance with the Sexual Misconduct Policy to the Title IX Coordinator or to a Deputy Title IX Coordinator.
For allegation(s) of discriminatory conduct that fall under this policy, the formal complaint procedures are as follows:
1.4.2.1 Complaints should be filed as soon as possible after the conduct giving rise to the complaint, but not later than sixty (60) calendar days after the conduct occurred.
1.4.2.2 In order to initiate the investigation process, the complainant should submit:
- a signed, written statement setting out the details of the conduct that is the subject of the complaint, including the complainant’s name, signature, and contact information;
- the name of the respondent, responsible for the alleged violation;
- a detailed description of the conduct or event that is the basis of the alleged violation;
- the date(s) and location(s) of the occurrence(s);
- the names of any witnesses to the occurrence(s);
- the resolution sought; and
- any documents or information that is relevant to the complaint.
While an investigation may begin on the basis of an oral complaint, the complainant is strongly encouraged to file a written complaint. If the complaint is not in writing, the investigator should prepare a statement of what they understand the complaint to be and seek to obtain verification of the complaint from the complainant. When a supervisor or University employee receives a complaint, they shall immediately notify the EO Office.
1.4.3 Formal Complaint Investigation
1.4.3.1 The EO Office or designee is responsible for investigating formal complaints under this policy.
1.4.3.2 Upon receipt of a complaint, the EO Office will send the complainant an acknowledgment of its receipt. A formal investigation will be initiated if a complaint is complete, timely, within the scope of this policy, and articulates sufficient specific facts which if determined to be true, would support a finding that this policy was violated. EO will also notify the respective supervisor(s) in case adjustments in the work environment are needed.
1.4.3.3 A complaint may be dismissed for a variety of reasons, for example: the complaint fails to describe in sufficient detail the conduct that is the basis of the complaint; the facts alleged in the complaint, even if taken as true, do not constitute discrimination on a protected basis; the complaint fails to allege any facts that suggest discrimination; the complainant declines to cooperate in the investigation, or the appropriate resolution or remedy has already been achieved or has been offered and rejected.
1.4.3.4 If it is determined that a complaint will not be investigated, the EO Office will send the complainant a notification letter explaining the reason and informing the complainant that, within ten (10) working days of the decision of dismissal, they may appeal, to the applicable Vice President, the decision not to proceed with a complaint investigation. The written appeal must explain why the decision to dismiss the complaint was in error. The respective Vice President will respond within twenty (20) working days of receipt of the appeal. The Vice President’s decision is final. If the decision to dismiss is overturned, the complaint is sent back to the EO Office for investigation in accordance with the procedures outlined below.
1.4.3.5 As part of the investigation process, the respondent shall be provided with a copy of the complaint and allowed ten (10) working days to respond in writing, unless unusual circumstances warrant additional time.
1.4.3.6 The complainant and respondent may present any document or information that is believed to be relevant to the complaint.
1.4.3.7 Any persons thought to have information relevant to the complaint shall be interviewed, and such interviews shall be appropriately documented. Other acceptable methods for gathering information include, but are not limited to, visual inspection of materials alleged to be offensive and follow-up interviews as necessary.
1.4.3.8 The investigation of a complaint will be concluded as soon as possible after receipt of the written complaint. In investigations exceeding sixty (60) working days, a justification for the delay shall be presented to the Vice President overseeing the investigative office. The complainant and respondent will be provided an update on the progress of the investigation.
1.4.3.9 Upon completion of the investigation, a written report will be issued. The report shall include an analysis of the facts discovered during the investigation and a recommendation of whether a violation of the policy occurred.
1.4.3.10 The investigator will provide a copy of the report, along with copies of relevant documents or other evidence considered, to the appropriate Vice President or to the Vice President’s designee. The investigator will send a copy of the report to the complainant and respondent, who will have ten (10) working days from the date of the report to submit comments regarding the report to the Vice President or designee. For complaints involving a student-respondent, in accordance with Family Educational Rights and Privacy Act (FERPA), the complainant and respondent will receive a copy of the report in which all student identifiable information has been redacted.
1.4.3.11 Within ten (10) working days of the complainant’s and respondent’s deadline for submitting comments to the report, the Vice President or their designee and the investigator may meet to discuss the findings, and review the record, including any comments or proposed corrections submitted by the complainant and respondent.
1.4.3.12 Within ten (10) working days of that meeting, the Vice President or their designee will take one of the following actions:
- request further investigation into the complaint;
- dismiss the complaint if the results of the completed investigation are inconclusive or there is insufficient reasonable, credible evidence to support the allegation(s); or
- find that this policy was violated
A decision that this policy was violated shall be made upon the record provided by the investigator and any comments submitted by the complainant or respondent. The decision shall be based on the totality of circumstances surrounding the conduct complained of, including but not limited to, the context of that conduct, its severity, frequency, whether it was physically threatening, humiliating, or was simply offensive in nature. Facts will be considered on the basis of what is reasonable to persons of ordinary sensitivity and not on the particular sensitivity or reaction of an individual.
1.4.3.13 The complainant and the respondent shall be informed in writing by the Vice President or his/her designee, of the decision and be provided a copy of the final statement of findings. However, for complaints involving a student-respondent, in accordance with FERPA, the complainant and respondent will receive a copy of the report in which all student identifiable information has been redacted. Upon conclusion of the complaint, a notice of the complaint outcome will be provided to the respective supervisors.
1.4.3.14 If the Vice President or their designee determines that this policy was violated, the matter will be referred to the appropriate office to determine disciplinary action that is appropriate for the severity of the conduct. Disciplinary actions can include but are not limited to, written reprimands, the imposition of conditions, reassignment, suspension, and dismissal.
1.4.3.15 Implementation of disciplinary action against faculty and employees will be handled in accordance with the University’s policy and procedures for discipline and dismissal of faculty and employees. The Office of Student Conduct and Conflict Resolution will impose disciplinary action, if any, against a student in accordance with the University’s student disciplinary procedures.
1.4.4 Provisions Applicable To All Complaints
1.4.4.1 Assistance
During the complaint process, a complainant or respondent may be assisted by a person of his or her choice; however, the assistant may not actively participate in a meeting or interview.
1.4.4.2 Retaliation
An administrator, faculty member, student, or employee who retaliates in any way against an individual because they have made or filed a charge, filed a complaint pursuant to this policy, opposed a discriminatory practice, or otherwise testified, assisted, or participated in any manner in an investigation, hearing or proceeding, is subject to disciplinary action, including dismissal. If any participants in the EO complaint process have been subject to retaliation, they should immediately report the alleged retaliatory conduct to the EO Office.
1.4.4.3 Confidentiality and Documentation
To the extent authorized by law and requested by the investigator, the University requires any individual who participates in the investigative process to keep the investigation and related information confidential, and not to discuss the investigation with anyone outside of those conducting the investigation. Any person who knowingly and intentionally makes an unauthorized disclosure of confidential information contained in a complaint or relating to the investigation of a complaint under this procedure may be subject to disciplinary action.
The University shall document complaints and their resolution. The EO Office, as appropriate, shall retain such documentation. To the extent permitted by law, complaints and information received during the investigation will remain confidential. Relevant information will be provided only to those persons with a need to know, in order to achieve a timely resolution of the complaint.
1.5 Compliance with State Law Regarding Diversity, Equity, and Inclusion in Institutions of Higher Education
The University is committed to compliance with Texas Education Code § 51.3525, related to diversity, equity, and inclusion in institutions of higher education. This applies to employees as well as contractors hired to perform University work that would otherwise be performed by an institutional employee. Employees are subject to discipline, up to and including termination, for engaging in conduct prohibited by Texas Education Code § 51.3525. Contractors not in compliance will be subject to termination of their relationship with the University.
1.6 Dissemination of Policy & Training
This policy will be disseminated annually to all faculty, employees, and students, and is also available at the EO Office and the EO Office’s website. The University will periodically educate and train employees and supervisors regarding this policy and conduct that could constitute a violation of this policy. Pursuant to Texas Labor Code, Section 21.010, new employees shall receive this training within 30 days of hire. All employees shall participate in refresher training every two years.
1.7 Definitions
Discrimination, including harassment, is defined as conduct directed at a specific individual or a group of identifiable individuals that subjects the individual or group to treatment that adversely affects their employment or education on the basis of race, color, national origin, sex, religion, age, disability, genetic information, veteran status, sexual orientation and gender identity in all aspects of employment and education.
Harassment, as a form of discrimination, is defined as verbal or physical conduct that is directed at an individual or group because of race, color, national origin, sex, religion, age, disability, genetic information, veteran status, sexual orientation, or gender identity when such conduct is sufficiently severe, pervasive or persistent so as to have the purpose or effect of interfering with an individual's or group's academic or work performance; or of creating a hostile academic or work environment. Constitutionally protected expression cannot be considered harassment under this policy.
Retaliation is defined as taking or threatening to take adverse action against an individual because they have filed a charge or complaint, opposed a discriminatory practice, or otherwise testified, assisted, or participated in an investigation, hearing, or proceeding. Retaliation includes, but is not limited to, intimidation, threats, or harassment against any complainant, witness, or third party.