Nondiscrimination Policy and Procedures

Report Discrimination and Harassment

Responsible University Administrator: Associate to the Chancellor for Institutional Equity and Compliance

Responsible University Office: Institutional Equity and Compliance (IEC)

Policy Contact: Marc Pearce, Associate to the Chancellor for Institutional Equity and Compliance – mpearce3@unl.edu

POLICY CONTENTS

  • Scope
  • Reason for Policy
  • Policy Statement
  • Prohibited Conduct
  • Other Definitions
  • Jurisdiction
  • Designating a Compliance Administrator
  • Reporting
  • Receipt of Report
  • Steps of Formal Complaint and Investigation
  • Determination
  • Appeals
  • Sanctions
  • Accommodations Statement
  • Limited English Proficiency

A. Scope

The University of Nebraska-Lincoln (“University”) is committed to providing education and work environments free of discrimination, harassment, and retaliation. This policy applies to all University-administered programs, including without limitation its academic, financial aid, admissions, and employment programs. Reports of employment discrimination involving Extension employees will proceed in accordance with 7 CFR part 18.

B. Reason for Policy

The University is committed to ensuring equal opportunity and access, as well as maintaining education and work environments free from discrimination, harassment, and retaliation for all students, faculty, staff, and visitors.

C. Policy Statement

The University strictly adheres to all applicable federal and state laws regarding non-discrimination and therefore prohibits all forms of discrimination or harassment based on one’s race, color, ethnicity, national origin, sex, pregnancy, sexual orientation, gender identity, religion, age, disability, genetic information, veteran status, marital status, or political affiliation. The University also prohibits any form of retaliation being taken against anyone for reporting discrimination, harassment, or retaliation at the University or for otherwise engaging in protected activity.

The University will respond to all reports brought by any students, employees, vendors, visitors, or other third parties alleging that they have been discriminated, harassed, or retaliated against based on a protected status, provided that one of the parties named in the complaint is a student, employee, or affiliate of the University and provided further that the report on its face states a claim that, if proven, would constitute a viable discrimination, harassment, or retaliation claim.

These procedures may be used to address misconduct issues based on or related to underlying claims of discrimination, harassment, or retaliation that do not involve any allegations of sexual misconduct. Allegations of sexual misconduct and allegations unrelated to any claims of discrimination, harassment, or retaliation will be addressed separately through the applicable procedures set forth in the Board of Regents Bylaws, University policies, collective bargaining agreements, or the Student Code of Conduct.

D. Prohibited Conduct

  1. “Discrimination” means engaging in practices or acts that impermissibly use, or produce unfavorable outcomes on the basis of, individuals’ status or statuses protected by state or federal law or University policy. The following are types of prohibited discrimination:
    1. “Disparate Treatment” is harmful, differential treatment of others based on a status that is protected by state or federal law or University policy. Harassment is an example of disparate treatment discrimination. The use of discriminatory practices regarding a person’s employment or enrollment are also considered disparate treatment.
    2. “Disparate Impact” means engaging in practices or actions that are intended and designed to be neutral but produce unfavorable outcomes that disproportionately affect individuals with a protected status.
    3. “Failure to Provide a Reasonable Accommodation” means an individual has a qualifying condition, characteristic, or circumstance that would justify a reasonable accommodation without posing an undue hardship to the University, but no reasonable accommodation was provided after the individual engaged in the interactive process seeking an accommodation.

  2. “Harassment” means unwelcome conduct that is based on an individual’s protected status or statuses, and

    1. Enduring the conduct becomes a condition of continued employment or enrollment, or
    2. The conduct is severe or pervasive enough to create a work or educational environment that a reasonable person would consider intimidating, hostile, or abusive.

    Individuals subjected to alleged harassment must demonstrate the conduct is based on their protected status or statuses. Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of impermissibility. To be impermissible, the conduct must create a work or educational environment that would be intimidating, hostile, or offensive to a reasonable person.

  3. “Retaliation” means intimidating, threatening, coercing, or discriminating against any individual for the purpose of interfering with any right or privilege secured by law or policy or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, or proceeding under this policy.

When discriminatory behavior is alleged against a University-sanctioned organization or group, as opposed to a named individual, the University will identify the individual(s) responsible for that group. The responsible individual(s) will be accountable for responding and remedying any conduct which is deemed a violation of these Policies and Procedures.

E. Other Definitions

Advisor: An individual who provides the complainant or respondent support, guidance, or advice and may accompany the complainant or the respondent to any meeting, such as an investigation interview. The complainant and the respondent may choose their advisor, who may be, but is not required to be, an attorney. The University will not limit the choice or presence of the advisor for either the complainant or respondent in any meeting or interview; however, the University may establish restrictions regarding the extent to which the advisor may participate in a meeting or interview.

Affiliate: Any individual associated with the University whose role is not that of student, faculty, or staff.  Affiliates and volunteers are individuals who need access to university services but are not paid by the University.

Complainant: An individual who is alleged to be the victim of discriminatory conduct. A complainant may also be referred to as a party.

Compliance Administrator: The University representative designated by the President, a Chancellor, or a designee to oversee compliance with this Policy for the System or a campus.

Employee: All University faculty, staff, and other personnel within the categories defined by §§ 3.1.1 through 3.1.3 of the Bylaws of the Board of Regents of the University of Nebraska whether full or part-time.

Formal Complaint and Investigation: A written, formal complaint submitted by an individual alleging discriminatory, harassing, or retaliatory behavior and a request that the University investigate.

Informal Resolution: Informal Resolution can be proposed by the Compliance Administrator, or their designee, or requested by one or both of the parties. A formal complaint is not required in order to commence Informal Resolution; however, both parties must be informed of the allegations before Informal Resolution may commence. Informal Resolution must be agreed upon by both parties and the Compliance Administrator or their designee. Informal Resolutions may include, but are not limited to, coaching conversations, mediation, and/or training requirements. Informal Resolutions are final and not appealable. If an Informal Resolution is reached, this precludes a complainant from pursuing a formal complaint arising out of the same facts or circumstances originally reported.

Investigator: A University official authorized to investigate complaints of prohibited discrimination, harassment, or retaliation.

Not Responsible: More likely than not that a respondent did not commit one or more of the alleged acts of prohibited discrimination, harassment, or retaliation.

Preponderance of the Evidence: The standard of evidence used by the University to determine whether the respondent violated this policy. A finding of responsibility by a preponderance of the evidence means that, based on the produced evidence and all reasonable inferences to be drawn from that evidence, it is more likely than not that the respondent violated this policy.

Respondent: An individual who has been reported to have engaged in conduct that could constitute prohibited discrimination, harassment, or retaliation. A respondent may also be referred to as a party.

Responsible: More likely than not that a respondent has committed one or more acts of prohibited discrimination, harassment, or retaliation. In other words, a preponderance of the evidence standard must be used to determine whether there was prohibited discrimination, harassment, or retaliation.

Responsible Unit: The Responsible Unit is the unit with the final decision making authority over the respondent regarding any recommended sanctions proposed by the Compliance Administrator or their designee (i.e. Student Affairs for students, Academic Affairs for faculty, and Human Resources for staff).

Student: All persons enrolled at the University and as defined within the University of Nebraska Student Code of Conduct.

Supportive Measures: Supportive measures are offered after a report of alleged prohibited discrimination, harassment, or retaliation is submitted and include appropriate, reasonably available, non-disciplinary and non-punitive individualized services that are offered to the complainant or the respondent without a fee or charge. A formal complaint is not required to implement supportive measures. Such measures are designed to restore or preserve equal access to the University’s education program or activity without unreasonably burdening the other party (including measures designed to protect the safety of all parties or the University’s educational environment) or to deter prohibited discrimination, harassment, or retaliation. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus accompaniment services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. The University will maintain the confidentiality of provided supportive measures to the extent that such confidentiality will not impair the University’s ability to provide those measures.

University: The term University refers to the University of Nebraska System and each of its campuses.

University Day: Weekday on which campus offices are open as reflected in the academic calendar for that campus.

Vendor: Any person, firm, partnership, association, corporation, or other entity furnishing a good, product, or service to the University.

Visitor: An individual present on the University campus, attending a University-sanctioned function, educational program, or activity, but who is not enrolled as a student or employed by the University.

F. Jurisdiction: Circumstances and Locations That Invoke the Procedures

These procedures address alleged discrimination, harassment, or retaliation that occurs within the University’s education programs or activities or occurs within the context of University employment. The term "education programs or activities” includes locations, events, or circumstances over which the University exercises substantial control over both the respondent and the context in which the discriminatory conduct occurs. The University has substantial control over the respondent if the University has authority to discipline the respondent when the complaint is filed. If the respondent is a visitor or other third party that is not subject to the University’s jurisdiction, the University’s ability to respond to the alleged discrimination, harassment, or retaliation may be limited. The University has substantial control over the context when the discrimination or harassment occurs in an education program or activity taking place on campus.

Alleged discrimination, harassment, or retaliation that occurs off campus may also be covered by these procedures if the Compliance Administrator or their designee determines that the alleged conduct could significantly impact University education programs or activities or University employment. For students, these procedures will apply to off campus discrimination, harassment, or retaliation to the same extent that the Student Code of Conduct applies to conduct violations that occur off campus. For employees, these procedures apply to off campus discrimination, harassment, or retaliation when the Compliance Administrator or their designee determines that 1) action is necessary to protect the health or safety of members of the University community, 2) the effects of the discrimination, retaliation, or harassment interfere with a person’s ability to participate in an education program or activity or employment, 3) the discrimination, harassment, or retaliation relates to an employee’s performance or their capacity to perform their work responsibilities, 4) the discrimination, harassment, or retaliation occurs when the respondent is serving in the role of a University employee, or 5) the discrimination, harassment, or retaliation distinctly and clearly implicates the University’s interests.

Discrimination, harassment, and retaliation that occurs through the use of University electronic systems is covered by these procedures.

When a report of prohibited discrimination, harassment, or retaliation also alleges physical violence or a threat of physical violence, the University may address the violent act independently of these procedures. The University prohibits both physical violence and the threat of physical violence. When there is sufficient plausible evidence to indicate that an employee respondent engaged in physical violence or threatened physical violence, an employment supervisor and Human Resources may impose any corrective action deemed commensurate with the violent or threatening conduct, including termination for cause. A student respondent may be subject to temporary suspension or emergency removal pending an investigation and disciplinary action.

G. Designating a Compliance Officer

The Chancellor of the University and/or their respective designee shall designate a Compliance Administrator(s) who will be responsible for overseeing compliance with this policy. Contact information for each Compliance Administrator will be maintained on the University’s website.

H. Reporting

All individuals, except for individuals designated as confidential resources who are acting in their confidential role, are expected to promptly report conduct that may violate the terms of this policy to the appropriate Compliance Administrator so that proper measures can be taken to respond to and remedy the situation.

Reports should be submitted as soon as possible after becoming aware of the conduct, preferably within sixty (60) calendar days after the occurrence of the alleged conduct. Although a report can be submitted anonymously, the University’s ability to investigate and respond to an anonymous report may be limited.

Reports may be submitted using the appropriate University reporting system (e.g., UNL Report) or website, or by phone, email, or an in-person visit to the office designated by the University to receive reports.

I. Receipt of Report

Upon receiving a report of discrimination, harassment, or retaliation, the Compliance Administrator or their designee shall promptly contact the complainant to discuss the report, reasonably available supportive measures, and options for response, including informal resolution and/or initiating a formal complaint and investigation as outlined below.

J. Steps of Formal Complaint and Investigation

The complainant may submit a written formal complaint alleging discrimination, harassment, and/or retaliation and request the University investigate.  Upon receipt of a formal complaint, the University will contact the complainant to determine whether the underlying allegations, if proven, fall within the scope of this policy.

If the Compliance Administrator or their designee determines that the formal complaint and the alleged conduct, on their face, do not violate this policy, the complainant will receive written notice that the complaint is dismissed. The complainant may appeal this dismissal within five (5) University Days to the Compliance Administrator or their designee, who will make a final determination within ten (10) University Days.

If the complaint sufficiently alleges facts, which if true, would constitute discrimination, harassment, or retaliation involving a student, employee, or affiliate of the University, the University will notify both the complainant(s) and the respondent(s) in writing of the complaint and pending investigation and will provide them with sufficient information regarding the underlying allegations and the applicable policy or policies to allow them the opportunity to respond and fully participate in the investigation.

Both parties have the right to an Advisor of their choice to accompany them to meetings, review documentation, and generally assist/support a party throughout the process. An Advisor may not interfere, disrupt, or speak on behalf of a party; these restrictions apply equally to both parties. It is expected that a party will participate directly in the process. An Advisor may be, but is not required to be, an attorney.

The investigation conducted by the University will involve interviewing parties and witnesses, gathering evidence and documents, and conducting site visits as deemed appropriate by the University. The University bears the responsibility of gathering evidence sufficient to reach a determination regarding responsibility based on the preponderance of evidence standard.

The complaint may be dismissed after the notice has been issued if specific circumstances prohibit the University from gathering sufficient evidence to make a determination, if the respondent is no longer employed, enrolled, or affiliated with the University, if the complainant formally withdraws the complaint, or if information comes to light that clearly and plainly establishes that the complaint cannot be proved.

The Investigator will prepare a draft Investigation Report that includes steps taken, relevant evidence, and analysis. This draft report will be sent to both parties for review and comment. Both parties will be provided ten (10) University Days to review and provide comments, if any, to the Investigator.

The Investigator may consider additional information or statements provided to the Investigator prior to completing a final Investigation Report.

K. Determination

The Investigator will send a final Investigation Report to the parties and the Compliance Administrator or their designee. The final Investigation Report will include the policy alleged to have been violated by the respondent, a review of the steps taken during the investigation, a description of the relevant evidence, and an analysis and recommended determination of whether the specified policy was or was not violated by the respondent. The Compliance Administrator or their designee will make a final determination and provide simultaneous written notice of that determination to both parties, the Investigator, and the Responsible Unit. The final determination normally shall be communicated within ten (10) University Days after issuance of the final Investigation Report, though this may vary based on unforeseen circumstances. If the respondent is found to be responsible for a violation, the final determination will include the recommended remedial sanction that is to be imposed. The Responsible Unit will implement the recommended sanctions in accordance with applicable employment laws, policies, practices, and agreements and shall inform the Compliance Administrator or their designee when the sanctions have been imposed and/or completed. In some instances, applicable laws, policies, practices, and agreements may require additional action by the Responsible Unit to determine whether the recommended sanction can be imposed or whether an alternative sanction is appropriate. Sanctions may be shared with a complainant in a manner that is applicable with federal and state law privacy requirements.

The final determination and any sanction(s) become final either on the date that the determination of the result of the appeal is sent to the parties, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.

L. Appeals

The final determination will identify an Appellate Officer. The complainant and respondent have the right to appeal the final determination on limited grounds within seven (7) University days after the issuance of the final determination. Appeals must allege one or more of the following circumstances:

  1. A procedural irregularity that affected the outcome of the matter;
  2. The discovery of new evidence that was not reasonably available at the time of the determination regarding responsibility, that could affect the outcome of the matter;
  3. The Investigator(s), or decision maker(s) had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter;
  4. The written decision was arbitrary and capricious or an abuse of discretion; and/or
  5. A finding of fact in the determination is clearly erroneous.

The Appellate Officer will notify the other party, the Investigator, and the Responsible Unit of a timely appeal. The other party and the Investigator shall have an opportunity to provide a written response, which normally must be submitted within ten (10) University Days of the written notice of appeal.

The Appellate Officer will review the appeal, any written responses to the appeal, and the investigation report. The Appellate Officer may request additional information from the Investigator or the parties at the Appellate Officer’s discretion.

The Appellate Officer will review all the information and determine whether to grant or deny the appeal. The written determination will describe the result of the appeal and the rationale for the result. If an appeal does not clearly raise one or more of the reasons listed above, the Appellate Officer will dismiss the appeal without further consideration.

If the Appellate Officer determines that the appeal clearly raises one or more of the reasons in the written decision, the Appellate Officer may:

  1. Affirm, in whole or in part, the decision on responsibility;
  2. Overturn, in whole or in part, the decision on responsibility;
  3. Remand the matter to remedy procedural errors or consider new evidence.

The determination of the Appellate Officer is final and not subject to further appeal.

The Appellate Officer should complete a review of the appeal normally within ten (10) University Days after receipt of the record and any additional information, though this may vary based on the scope of the appeal and unforeseen circumstances.

M. Sanctions

Sanctions are intended to eliminate prohibited conduct, prevent its recurrence, and promote accountability while supporting the University’s educational mission and legal obligations. Sanctions may include discipline, education, restorative practices, and monitoring components.

Possible sanctions for Employees include:

  • Coaching or education;
  • Mentoring;
  • Verbal warning;
  • Written warning;
  • Changes to work duties or location;
  • Probation or transfer of position;
  • Completion of mandatory conditions;
  • Suspension without pay;
  • Nonrenewal or non-reappointment;
  • Loss of rank or position;
  • Denial of salary increase;
  • Activity termination;
  • Demotion in rank or pay;
  • Termination of employment; and/or
  • Ban on University re-employment.

Possible sanctions for Students include:

  • Written warning;
  • Probation;
  • Expulsion from University housing;
  • Suspension from University housing;
  • Mandatory relocation;
  • Loss of privileges for a specified period;
  • Restitution;
  • Performance of service to the University community;
  • Completion of educational programs, assignments, or behavioral evaluations that reasonably relate to the violation;
  • Employment restrictions;
  • Revocation of admission and/or degree;
  • Withholding degree;
  • No Contact Order;
  • Loss of status as a recognized student organization;
  • Suspension for a specified period; and/or
  • Expulsion.

Sanctions may be imposed in combination with one another and conditions for satisfying sanctions may be imposed. Sanctions will be clearly stipulated and any conditions for satisfying sanctions will be clearly defined. Nothing in this section shall be construed to relieve the University of its obligations under other University Bylaws or Policies.

N. Accommodations Statement

The University is committed to providing individuals with disabilities an equal opportunity to participate in and benefit from University programs, activities, and services. Individuals may request reasonable accommodations from the University that they believe will enable them to have such equal opportunity to participate in University programs, activities, and services. Requesting accommodations is an interactive process initiated by the individual making the reasonable accommodations request.

O. Limited English Proficiency

In accordance with the prohibition against discrimination on the basis of national origin under Title VI and Executive Order 13166, the University of Nebraska is committed to the accessibility of services to those with Limited English Proficiency (LEP). The University will make available appropriate alternative language formats to those with limited English proficiency upon request to ensure accessibility of University related services and supports.

Reference: https://www.justice.gov/crt/executive-order-13166

Last updated January 2, 2024