P20: Prohibition Against Discrimination, Harassment, and Retaliation: Report and Investigation Procedure
Effective Date: July 1, 1978
Revised Date: November 10, 2021
Formal complaints of Title IX Sexual Harassment shall be resolved pursuant to P20a: Interim Grievance Process for Formal Complaints of Title IX sexual harassment. All other reports of violations of the following ASU policies shall be resolved pursuant to this procedure:
ACD 401: "Prohibition Against Discrimination, Harassment, and Retaliation,"
ACD 402: "Romantic or Sexual Relationships Between Faculty and Students,"
SPP 815: "Romantic or Sexual Relationships Between Staff/Volunteers and Students," and
the provisions of the Graduate TA/RA Handbook found at https://graduate.asu.edu/ta-ra-handbook addressing sexual harassment, amorous relationships, equal opportunity, and religious beliefs and practices.
The purpose of these procedures is (1) to provide all members of the ASU community with a process for investigating these policy violations, and (2) to provide assistance and guidance to the Title IX Coordinator and the ASU Office of University Rights and Responsibilities in carrying out its responsibilities in administering and enforcing Arizona Board of Regents and ASU policies.
The University may, from time to time, amend this document as necessary. Amendments may apply to grievances ongoing at the time the amendment is made, unless the effect of the amendment is to reduce the rights of either complainants or respondents, in which case the version of this process in effect at the time the report was made will be followed.
A. Reporting of Violations
- Reports alleging sexual harassment, discrimination, and retaliation by employees may be made to any employee within the university. All employees, unless precluded by law, are required to immediately disclose any allegation of sexual harassment to the ASU Office of University Rights and Responsibilities or the Title IX Coordinator/Deputy Title IX Coordinators. Reports alleging sexual harassment by students may be made to any employee within the university. All employees, unless precluded by law, are required to immediately disclose any allegation of sexual harassment by a student to the Office of Student Rights and Responsibilities who will coordinate with the Title IX Coordinator/Deputy Title IX Coordinators.
- The Title IX Coordinator shall make a determination on a request for anonymity, pursuant to ACD 401, for all reports alleging sexual harassment, discrimination, and retaliation by employees, within 3 business days of the request. The Office of University Rights and Responsibilities shall make a determination on a request for anonymity for reports of all other violations of ACD 401.
- All other reports of violations of ACD 401 may be made to any manager, supervisor, or other administrator. If the person to whom a violation of ACD 401 normally would be reported is the individual accused of any conduct prohibited under ACD 401, reports may be made to another manager, supervisor, or administrator or the Office of University Rights and Responsibilities. Managers, supervisors, and administrators shall promptly notify the Office of University Rights and Responsibilities when a report is received. If a student is alleged to have violated ACD 401, a report shall be promptly made to the Office of Student Rights and Responsibilities by the person to whom the report is made.
- In consultation with the Office of University Rights and Responsibilities, a supervisor receiving a report of a violation of ACD 401 may take actions needed to establish that there is a reasonable basis to suspect that a violation has occurred in order to confirm the appropriateness of any preliminary evaluation or indicate the need for additional assistance. No department or individual shall enter into any kind of discussion regarding settlement without prior approval from the Office of General Counsel and the Executive Vice President, University Provost or the President.
- All reports should be made as soon as possible after the alleged violation. Prompt reporting enables the University to investigate the facts, determine the issues and provide an appropriate remedy or action. The ability of the Office of University Rights and Responsibilities and Title IX Coordinator to investigate reports could be impacted (e.g. availability of witnesses, preservation of evidence) if a report is not filed promptly.
- Employee relations or collegiality issues shall be addressed through normal supervisory channels and applicable policies.
B. Making a Report
- With the exception of a faculty member making a report of discrimination under the terms set forth in Section C below, a report of a potential violation of the policies covered by this procedure may be made verbally or in writing but the person to whom the report is made shall document it with as much information as possible. If the report is not made directly to the Office of University Rights and Responsibilities or the Title IX Coordinator, then the person to whom the report is made shall notify the Office of University Rights and Responsibilities or Title IX Coordinator of the report.
- The University shall respond, to the extent possible, to reports of potential violations made anonymously or by third parties not directly involved in the alleged violation. However, the response to such reports may be limited if information contained in the report cannot be verified. Anonymous or third-party reports of potential violations may be addressed through an informal resolution process.
- Reports of violations are strongly encouraged to be in writing, setting forth as much information as possible, including:
(A) The full name and contact information of the reporting or complaining party;
(B) The name of the individual(s) alleged to have violated policy; and
(C) A clear and concise statement of the facts that constitute the alleged violation, including dates and sufficient information to identify any other individuals who may provide information during the course of an investigation.
- If the Office of University Rights and Responsibilities determines that the report does not allege possible policy violations or that the information provided indicates that further investigation could not result in a finding of a violation, the Office of University Rights and Responsibilities will, where appropriate, refer the matter to the appropriate unit or department to address any employee relations issues. If such a determination is made the Office of University Rights and Responsibilities shall notify the reporting individual of the referral and will facilitate contact with the appropriate university representative in the unit or department. Ordinarily, assessment will be concluded within 7 business days of the date the report was filed. If it is determined that possible policy violations have been alleged or that the information provided by the reporting individual indicates that further investigation may result in a finding of policy violation then the report will be accepted as a report. The Office of University Rights and Responsibilities and Title IX Coordinator will always initiate an investigation into a report of sexual harassment or Title IX Sexual Harassment as specified in Section D.
C. Faculty Member Complaints of Discrimination
- Unless the complaint involves sexual harassment, a faculty member who receives an adverse decision concerning his or her promotion, tenure, nonrenewal, suspension without pay or dismissal for just cause may file a written complaint alleging that the adverse decision was a discriminatory action. This complaint must be filed with the Office of the President within ten (10) days of the faculty member’s “receipt of notice” (delivery of written notice of final adverse decision to the last known address by certified return receipt requested mail, deemed received if undeliverable) of the final adverse decision. A faculty member who wishes to report an alleged violation of ACD 401 with respect to any term or condition of employment, other than promotion, tenure, nonrenewal, suspension without pay or dismissal for just cause who does not timely file a complaint with the Office of the President, or who is making a complaint of sexual harassment, must use the procedures specified in Sections A, B, D, E and F herein.
- Upon receipt of the written complaint of discrimination from the faculty member, the Office of the President will forward the complaint to the Office of University Rights and Responsibilities to initiate an investigation per the provisions of Section D below.
- The faculty member and the academic administrator(s) who is alleged to have rendered the adverse employment action on a discriminatory basis will participate in the Informal Resolution Process described in Section E below as an alternate resolution process. This alternate resolution process shall adhere to the timelines specified in ABOR 6-201.M.1.d. If the matter is not resolved through this alternate resolution process, the complaint will be transmitted to the Chair of the Committee on Academic Freedom and Tenure by the Office of University Rights and Responsibilities.
- The faculty member’s written complaint of discrimination will be heard by the Committee on Academic Freedom and Tenure in accordance with the hearing procedures specified in ABOR 6-201.M.2 if it is not resolved through the alternate resolution process. The president will render a final decision pursuant to the provisions of ABOR 6-201.M.3 and 4.
D. Investigative Process
- Investigations shall be conducted by the Title IX Coordinator or the Office of University Rights and Responsibilities, or by a designee of the Office of General Counsel.
- The Office of University Rights and Responsibilities will provide the parties with written information on supportive services available at the university and in the community. Complainant will be provided information on how to file a formal complaint of Title IX sexual harassment in cases involving matters that could fall within the definition of Title IX sexual harassment. Complainant will be provided supportive measures whether or not they decide to file a formal complaint.
- An initial review consisting of contacting at least the reporting party, complainant and when necessary the respondent will be completed at the outset of the investigative process. Based on that review, the Office of University Rights and Responsibilities may recommend to the appropriate university designee that, regardless of whether or not a policy violation was to be found, proactive measures, including but not limited to, education or training would be the most appropriate resolution. If the appropriate university designee concurs with the recommendation, notice of the resolution will be provided to the contacted parties. This notice may be provided by the Office of University of Rights and Responsibilities or by a university designee.
- Unless the report is resolved during the initial review described in Section D.3, a notice of investigation will be provided to the parties. All parties will be given the opportunity to provide information and respond. Additional notice may be provided to individuals with a legitimate need to know, including appropriate administrators including Deans, Directors, Academic or Administrative Unit Heads or Vice Presidents, who may have an obligation to monitor the environment to ensure that retaliatory action does not occur during or after the investigative process.
- In cases involving allegations of dating violence, domestic violence, sexual assault, or stalking, the parties will be given timely notice of meetings taking place as well as access to information that will be used during any hearings. Parties may be accompanied by an advisor of their choice to meetings. During the investigation process, the advisor can provide support, guidance, and advice but the advisor is not an active participant in the meeting. If the investigation results in disciplinary action for which there is a hearing process, the right to an advisor shall be as set forth in that hearing process.
- An investigation may include, as needed, the gathering of information, including interviews with individuals who may have information concerning the allegations as set forth in the report and gathering and review of documents as appropriate. At any time during the investigation, the investigator or the Title IX Coordinator may recommend that interim protections or remedies be provided by appropriate university officials. Failure to comply with the terms of interim protections may be considered a separate violation of ACD 401. The investigation shall be completed as promptly as possible, and in most cases, within 90 calendar days of the date the investigation is initiated. If more time is necessary to complete an investigation, then the investigator shall notify the relevant parties. In the event that there is a simultaneous criminal investigation, the investigator will coordinate with law enforcement and determine what, if any, delay is appropriate.
E. Informal Resolution
The Office of University Rights and Responsibilities will determine when informal resolution may be appropriate. The informal resolution process will not be used for reports of sexual harassment or Title IX sexual harassment.
Individuals making reports of policy violations may wish to resolve the matter through an informal process or reach a resolution through alternatives to the investigative process. The goal of an informal resolution is to resolve concerns at the earliest stage possible, with the cooperation of all parties involved. Informal resolution is an option when the parties desire to resolve the situation cooperatively.
Means for informal resolution shall be flexible and encompass a full range of possible appropriate outcomes. Informal resolution includes options such as facilitating an agreement between the parties, separating the parties, referring the parties to counseling programs, imposing appropriate remedial action as determined by the university, conducting targeted educational and training programs, and providing remedies for the individual harmed by the policy violation. Informal resolution efforts, including any mutually agreed upon outcome, shall be documented.
If a mutually acceptable solution cannot be reached through the informal resolution process, an investigation through the appropriate office will continue to proceed.
F. Reviews of Factual Findings and Determinations Regarding Violations of Covered Policies
- Upon the completion of the investigation, the investigator shall prepare a written report summarizing the factual information gathered. Where there are areas of factual dispute, the report shall describe those areas and the evidence supporting each position in that dispute, and, where relevant, evaluate the credibility of witnesses.
- A copy of the written report shall be provided to the appropriate university designee. If the matter involves claims of sex discrimination and/or retaliation related to a sex discrimination claim, a copy will also be provided to the Title IX Coordinator.
- The appropriate university designee will evaluate the findings, request additional information as needed, and make a determination regarding whether a policy violation has occurred. If the matter involves allegations of sex discrimination and/or retaliation related to a sex discrimination claim, the Title IX Coordinator will provide input to the appropriate university designee prior to their issuing the final determination.
- The appropriate university designee is either the University Provost; the Executive Vice President, Treasurer and Chief Financial Officer; the Senior Vice President for Educational Outreach and Student Services; the Executive Vice President, ASU Knowledge Enterprise; the Executive Vice President, Learning Enterprise; the Chief of Staff, Office of the President; or their designee. The appropriate university designee shall provide their determination to the complainant, the party accused of violating the policy, the appropriate university administrator, and the Office of University Rights and Responsibilities. In cases involving claims of sex discrimination and/or retaliation related to a sex discrimination claim, a copy will also be provided to the Title IX Coordinator. The determination is final.
- Disciplinary action will be issued under the applicable procedure for the employment classification of the employee who has been found to have violated covered policies, i.e. for faculty, at ABOR 6-201.J. and L.; for administrators, at ABOR 6-101.H., for academic professional staff, at ABOR 6-302.G. and I., or ACD 508-03; university staff, at SPP 301, SPP 801, SPP 808; and for classified staff, at SPP 809; and, at SPP 901.
II. Records Retention
The written report and referenced exhibits developed or created as a result of an investigation, shall be retained by the Office of University Rights and Responsibilities for the length of the employee’s term of employment and for a period of 5 years from the time of separation of employment by the employee. All other related documents, materials and records shall be destroyed in accordance with the records retention policy.
Student records related to or arising out of an investigation by the Office of Student Rights and Responsibilities shall be retained in accordance with student records retention policies and procedures.