3.39 – Anti-Harassment and Anti-Discrimination

A. Purpose

To set the college’s policy regarding anti-harassment and anti-discrimination and to establish procedures for reporting violations and investigating grievances of alleged discrimination, harassment and retaliation.

B. Policy

Discrimination, harassment and retaliation on the basis of protected status are strictly prohibited.

C. Procedures

Allegations of harassment on the basis of sex are addressed under policy 4.06 Sexual Harassment and Grievance Procedures. All other types of discrimination based on protected status will follow the procedures below.

Reporting Potential Violations

The college will respond to reports of alleged prohibited conduct in an adequate, reliable, impartial, thorough, and prompt manner, as set forth below. If the college determines that discrimination has occurred, appropriate corrective and remedial actions will be taken.

All employees should report a potential violation of this policy immediately to the Chief Human Resources Officer Ocki Haas.
1001 E. Chestnut Expressway
Springfield, MO 65802
417-447-2631
haaso@otc.edu

Students, prospective students and third parties should report a potential violation of this policy immediately to the College Director of Equity and Compliance Kevin Luebbering.
1001 E. Chestnut Expressway
Springfield, MO 65802
417-447-8188
luebberk@otc.edu

It is required for all college employees, unless designated as confidential employees because of professional confidentiality, to immediately report any complaints, reports, observations, or other information of alleged discrimination, harassment, or retaliation, to the college director of equity and compliance or the chief human resources officer. The duty to report extends to an employee who learns of alleged discrimination through the employee’s participation in the college’s student or employee disciplinary process. If the college uses its disciplinary procedures to investigate and resolve an alleged discrimination complaint, those disciplinary procedures will comply with the college’s standards for a prompt and equitable grievance procedure.

Any person can file a complaint of discrimination with the U.S. Department of Education’s Office for Civil Rights by visiting www2.ed.gov/about/offices/list/ocr/complaintintro.html or by calling 1-800-421-3481.

Investigation and Resolution Procedures

1.     Commencement of Investigation

When a report of discrimination, harassment, or retaliation involving a student or third party is received, the report will be referred to the college director of equity and compliance for investigation and resolution. When a report of discrimination, harassment, or retaliation involving an employee is received, the report will be referred to the chief human resources officer for investigation and resolution. When a report involving both a student and an employee is received, the report will be referred to the college director of equity and compliance who will consult with the chief human resources officer regarding the investigation and resolution.

The college strives to resolve complaints of discrimination, harassment or retaliation within sixty (60) days of a report. If, based on the complexity of the complaint, time to resolution will exceed sixty (60) days, the reasons will be communicated to the complainant and the respondent. If any person involved in investigating or resolving reports of discrimination, harassment or retaliation under this section determines that they cannot act or apply this policy in a fair or impartial manner because of a conflict of interest, another individual will be designated to fulfill their responsibilities. The college will not delay its investigation of discrimination complaints, even if an outside entity or law enforcement agency is investigating a complaint involving the same facts and allegations, and the college will not wait for the conclusion or outcome of a criminal investigation or proceeding to begin an investigation required by this grievance procedure.

2.     Investigation

Under the formal complaint procedure, the college director of equity and compliance or the chief human resources officer will designate investigators for the complaint. During the investigation, both the complainant and respondent will have the opportunity to identify witnesses and evidence. Investigations will be handled discreetly, with information shared only with those persons who need to know the information in order for there to be a full and fair investigation. The college director of equity and compliance or chief human resources officer will discuss the need and may impose interim measures during the pendency of the investigation to protect and separate the parties.

3.     Informal Resolution

The complainant or respondent may request to resolve the complaint informally. If both parties voluntarily agree to attempt informal resolution, the process will be facilitated by the college director of equity and compliance or the chief human resources officer or a designee. At any point during the informal process, either party may initiate the formal complaint procedure. An informal resolution process will not delay the college’s duty to conduct a prompt investigation of a complaint of discrimination, harassment, or retaliation.

4.     Resolution

The investigators will prepare a written report summarizing the results of the investigation and deliver it to the college director of equity and compliance or the chief human resources officer. The college director of equity and compliance or the chief human resources officer will review the report and consult with other college administrators and officials as deemed appropriate. The college director of equity and compliance or the chief human resources officer will issue a determination as to whether or not the complaint is substantiated based on a preponderance of the evidence standard. If the complaint is substantiated, the college director of equity and compliance or the chief human resources officer, with consultation from other college administrators as deemed appropriate, will determine what remedial measures will be taken to address the misconduct, including discipline for the respondent or initiation of disciplinary proceedings pursuant to other college policies. Substantiated incidents of conduct prohibited by this policy can lead to discipline up to and including dismissal and termination.

The college director of equity and compliance or the chief human resources officer will communicate the determination to the complainant and respondent in writing. The written investigative report will include: 1) a summary of the facts, 2) an analysis of the evidence, and 3) findings regarding whether discrimination occurred using a preponderance of the evidence standard.

In consultation with other college administrators as deemed appropriate and based on the investigative findings, the respondent may have interim or permanent sanctions imposed to address the discrimination, harassment and retaliation and to prevent recurrence.

These interim measures for students may include, but are not limited to, appropriate counseling, academic support, schedule adjustments of academic, extracurricular, or other activities, written reprimand, probation, suspension or expulsion. Any adjustments will be designed to minimize the burden on the complainant’s education.

Possible interim and/or permanent measures for employees to stop discrimination, harassment, and retaliation, to remedy such discrimination, and prevent recurrence may include, but are not limited to, any necessary counseling, written warning, paid and unpaid suspension, demotion, and termination.

5.     Appeals

Applicability

This appeals section applies to all appeals of determinations of reports made under this policy when an employee or third party is the respondent.

All appeals of determinations where a student is a respondent will be addressed pursuant to the policy 5.16 Student Discipline and Appeals.

Process

The complainant or respondent may appeal the determination of a complaint only on the following grounds: 1) there is a substantial likelihood that newly discovered information, not available at the time evidence was presented to the investigator, would result in a different decision; 2) there was a procedural error significant enough to call the outcome into question; 3) there was a clear error in factual findings; 4) there was bias or prejudice on the part of the investigator; or 5) the punishment or the corrective action imposed was disproportionate to the offense.

Appeals must be filed with the vice chancellor for administrative services (“appellate officer”) within ten (10) college business days of receipt of the written report determining the outcome of the complaint. The appeal must be in writing and contain the following: 1) name of the complainant; 2) name of the respondent; 3) a statement of the determination of the complaint, including corrective action, if any; 4) a detailed statement of the basis for the appeal including the specific facts, circumstances, and argument in support of it; and 5) requested action, if any. The appellant may request a meeting with the appellate officer, but the decision to grant a meeting is within the appellate officer’s discretion. However, if a meeting is granted, then the other party will be granted a similar opportunity.

Resolution

The appellate officer will resolve the appeal within ten (10) college business days of receiving it and may take any and all actions that they determine to be in the interest of a fair and just decision. The appellate officer shall issue a written statement of the resolution of the appeal, including any changes made to the chief human resources officer previous written determination. The written statement shall be provided to the complainant and respondent within five (5) college business days of the resolution.
An employee who is subject to discipline at the outcome of this procedure may seek additional review from the chancellor under step 3 of the policy 3.29 Employee Grievance policy.

6.     Special Procedure Concerning Reports Against the chancellor, a board member, the college director of equity and compliance, the chief human resources officer or member of cabinet.

If a complaint involves alleged conduct on the part of the chancellor, the college’s board of trustees will designate the investigator. Based on the information gathered during the investigation, the board of trustees will review the findings to determine the validity of the allegations. The determination of the board of trustees is final and not subject to appeal.

If a complaint involves alleged conduct on the part of a member of the board of trustees, the remaining members of the Board of Trustees will designate the investigator. Based on the information gathered by the investigation, the remaining members of the Board of Trustees will review the findings to determine the validity of the allegations. The determination of the remaining members of the Board of Trustees is final and not subject to appeal.

If a complaint involves alleged conduct on the part of the college director of equity and compliance, the chief human resources officer or member of cabinet, the chancellor will designate the investigator. Based on the information gathered during the investigation, the chancellor will prepare and issue the written report determining the complaint. The determination of the chancellor is final and not subject to appeal.

The written report in an investigation using these special procedures will include: 1) a summary of the facts, 2) an analysis of the evidence, and 3) findings regarding whether discrimination occurred using a preponderance of the evidence standard.

7.     Other matters

The college director of equity and compliance is responsible for coordinating the college’s compliance with discrimination laws, including Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, Title VI of the Civil Rights Act of 1964, and the Americans with Disabilities Act.

It is the responsibility of the college director of equity and compliance to: (1) receive complaints under this policy and grievance procedure; (2) coordinate dissemination of information and education and training programs; (3) assist members of the college community in understanding that discrimination, harassment, and retaliation are prohibited by this policy; (4) answer questions about this policy; (5) appoint investigators and ensure that they are trained to respond to and investigate complaints of discrimination, harassment and retaliation under this policy; (6) ensure that employees and students are aware of the procedures for reporting and addressing complaints of discrimination, harassment, and retaliation; (7) oversee the appropriate implementation of the policy; (8) document all reports of discrimination, harassment, and retaliation under this policy and establish a protocol for recordkeeping.

D. Definitions

College community is the students, faculty, and staff of the college, the board of trustees, visitors, contractors and consultants performing work or services on college owned or leased properties and all other invitees of the college.

Complainant is the person who files the report or is the alleged recipient of discrimination, harassment or retaliation.

Discrimination is the adverse treatment of an individual based on protected status. It is a violation of this policy to discriminate on the basis of a protected status in any of the college’s programs and activities.

Harassment is unwelcome verbal, non-verbal, or physical conduct that denigrates or shows hostility or aversion toward an employee, student, or other members of the college community, including third parties, because of a protected status. Harassment constitutes a form of prohibited discrimination if it denies or limits a person’s ability to participate in or benefit from the college’s programs and activities (“discriminatory harassment”). Conduct prohibited by this policy may include, but is not limited to, inappropriate gestures, inappropriate written or electronic material, threats or intimidating or hostile conduct, physical acts of aggression, assault, or violence, criminal offenses, jokes or pranks, name-calling, offensive objects or pictures that are hostile or demeaning with regard to a person’s protected status or have the purpose or effect of creating an intimidating, hostile, abusive or offensive working or academic environment. Claims of sexual harassment are defined under and will be addressed by policy 4.06 Sexual Harassment and Grievance Procedures.

Preponderance of evidence is the burden of proof utilized in all college investigations. Burden is met when it is more likely than not that a policy violation occurred.

Protected status is providing equal opportunities for all persons and not discriminating or retaliating on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, marital status, age, disability, citizenship or legal immigration status, veteran status, or any other status protected by federal, state and local laws. This extends to admissions, employment, services, and educational programs and activities that the college operates. See https://about.otc.edu/anti-discrimination-statement/.

Respondent is the person who is the subject of the report or is the alleged perpetuator of discrimination, harassment or retaliation.

Retaliation is a prohibited action against anyone for reporting discrimination or harassment, assisting in making a report, cooperating in an investigation, proceeding, or hearing, or otherwise exercising their rights or responsibilities under this policy and applicable federal, state, and local laws. Retaliation prohibited by this policy consists of materially adverse action, such as disparaging comments, uncivil behavior, or other negative treatment of a member of the college community because a report has been made pursuant to this policy or because an individual otherwise cooperated with the college’s investigation.

E. Authority

This policy is maintained under the authority of the vice chancellor for student affairs and chief human resources officer.

F. Related Policies

3.29 – Employee Grievances

4.06 – Sexual Harassment and Grievance Procedures

5.15 – Standards of Student Conduct

5.16 – Student Discipline and Appeals

G. Implementation

Policy approved and adopted by the Board of Trustees on 7/1/1991; revised on 2/13/2006; 11/14/2016, and 1/13/2020.

Purpose, Procedures, Definitions, Authority and Related Policies sections approved and adopted by the Chancellor’s Cabinet on 8/30/2016; revised on 12/12/2019 and 08/25/2020.

Set for review in fiscal year 2023-2024.