Interim Procedures Subject to Consultation with Unions

Interim Procedures subject to consultation with Unions

Effective June 1, 2000

The Chancellor is responsible for implementing the following administrative procedure. All complaints initiated on or after the effective date of this procedure will be handled by this document.

I. Purpose

This complaint procedure is intended to provide a fair, prompt, sensitive and complete resolution of complaints from University of Hawaii at Hilo (referred to hereafter as "UH Hilo") students and employees alleging violations of the University of Hawaii's (referred to hereafter as the "University") Executive Policy E1.203 on sexual harassment. E1.203 prohibits sexual harassment as a form of sex discrimination, in compliance with Title IX of the Education Amendments of 1972, Title VII of the Civil Rights Act of 1964, and the Hawaii State Fair Employment Practices Act, Chapter 378 HRS.

Use of UH Hilo's sexual harassment administrative complaint procedure does not preclude filing complaints with the appropriate employee union or state or federal enforcement agencies. It does not preclude filing a complaint with the Police Department.

II. Statement of Commitment

Acts of sexual harassment undermine the foundation of trust and mutual respect that must pervade the academy and is essential to its mission. UH Hilo seeks to end sexual harassment within its purview, setting an example for and working in partnership with the larger community.

UH Hilo opposes sexual harassment and has a responsibility to take immediate and appropriate corrective action when it knows or should know of existing sexual harassment. UH Hilo shall take action reasonably calculated to end sexual harassment where it exists and to assist UH Hilo employees and students who are sexual harassment targets.

These procedures reflect UH Hilo's policy that sexual harassment will not be tolerated in any part of the University's programs and activities. Through these procedures, UH Hilo shall provide education and counseling to university members, and timely and fair resolution of complaints, including proper regard for the procedural rights of the accused. When necessary to end sexual harassment, UH Hilo shall take immediate and appropriate corrective action to end sexual harassment with the goal that such acts not be repeated.

The University of Hawaii at Hilo shall not tolerate any act of retaliation directed against any individual involved in a sexual harassment complaint or resolution or who seeks a remedy against sexual harassment. Retaliation against parties directly or indirectly involved in any sexual harassment complaint is unacceptable and shall be considered a separate complaint that may merit the imposition of sanctions.

III. State on Consenting Relations

Consenting romantic and sexual relationships between a faculty member and student or between a supervisor and subordinate can lead to charges of sexual harassment. Thus, while such relationships are not expressly forbidden, they are strongly discouraged. All members of the UH Hilo community must be aware that even in relationships where no negative consequences arise for the individuals involved, they can create a conflict of interest and the risk of academic or supervisory leverage to maintain or promote the relationship. Such sexual relationships, viewed by parties as mutual, may give rise to questions of favoritism or abuse of trust and power.

IV. Definitions

As used in this administrative procedure:

A. "Sexual Harrassment" is defined as:

1. Quid pro quo. Sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when submission to such acts is either explicitly or implicitly a condition of an employee's or student's advancement, or submission or rejection of such conduct by an employee or student or threatened to be used as the basis for:

a. adverse decisions affecting employment actions, or b. academic decisions

2. Hostile academic/work environment.Intimidating, threatening, or offensive verbal or physical conduct of a sexual nature, which is unwelcome and is sufficiently severe or pervasive to interfere with an employee's work environment or a student's education.

The conduct must be perceived as both subjectively and objectively offensive; i.e. the Reporting Party must herself or himself view the conduct as offensive and a reasonable person wih the same fundamental characteristics of the person bringing the charge (e.g., age, gender, race, background) would view the conduct as offensive.

B. "Retaliation" is any adverse or hostile action, expressed or implied, including but not limited to, intimidation, threats, coercion, or discrimination against any individual because he or she has made a complaint, or otherwise sought assistance, served as a witness, or participated in a complaint resolution process under this administrative procedure.

C. "Reporting Party" is an individual who makes a report of sexual harassment that he/she has either experienced or observed.

D. "Respondent(s)" is a person(s) accused of having committed sexual harassment.

E. "Report" is a description of alleged acts of sexual harassment.

F. "Complaint" is a formal allegation of sexual harassment subject to procedures outlined in Section V.

G. "No Cause finding" is a conclusion that there is insufficient evidece to support a finding of a violation of the sexual harassment policy (i.e., that the preponderance of the evidence does not support the Reporting Party's allegations of sexual harassment).

H. "Cause finding" is a conclusion upholding the formal complaint of sexual harassment and finding that the preponderance of the evidence supports the allegations of sexual harassment.

I. "Office of the Chancellor" is the principal administrative office for UH Hilo. This office coordinates the sexual harassment complaint process, including but not limited to, the appointment of the Decision Maker, Investigative Officer, etc. The Chancellor also includes his/her designee.

J. "Student Sexual Harassment Advisor" assists students on issues related to sexual harassment. The Advisor can provide assistance in the form of information and supportive counseling, and assistance through the informal and formal resolution/complaint processes.

L. "Administrative Officers" are UH Hilo administrators across the campus at the vice chancellor, dean/director, and assistant/associate dean level who assist students, faculty and staff requesting information and/or advice on personal sexual harassment issues. They shall receive on-going training on applicable laws, UH Hilo policies and procedures, complaint-resolution options and confidential issues. Their duties and responsibilities may include:

1. Providing information on options under this administrative procedure of the availability of external agencies;

2. Resolving informal complaints;

3. Providing information of the availability of the Student Sexual Harassment Advisor and/or EEO/AA Coordinator.

4. Submitting to the EEO/AA Coordinator an annual log of informal/formal complaints and statistical information on anonymous reports regarding sexual harassment.

M. "Employee" is a person employed full-time or part-time by UH Hilo.

N. "Student" is a person registered for course work at UH Hilo at the time of the alleged incident of sexual harassment, including student employees and graduate assistants.

O. "Good Faith" is a finding that the Reporting Party filed a report or complaint that was not knowingly false or frivolous.

P. "Fact Finding Report" is a summary to the allegations of both parties and a summary of factual findings.

Q. "Preponderance of the Evidence" is the burden of proof for a finding of sexual harassment. It requires that the evidence supporting a finding of sexual harassment is of greater weight than the evidence disputing a finding of sexual harassment (i.e. more than 50%, or more convincing than the evidence offered in opposition to it).

V. Reporting Incidents of Alleged Sexual Harassment

A. Introduction

Counseling and education are available to all persons within the university community. Members of the UH Hilo community who believe that they have been sexually harassed are encouraged to consult with the appropriate Administrative Officer, the Student Sexual Harassment Counselor (students) and/or the EEO/AA Coordinator (employees) for advice on sexual harassment procedures.

B. Initiating the Complaint

Individuals who are willing to identify a Respondent may file a complaint and may process the complaint through either the informal procedure or the formal investigative procedure.

If the Reporting Party chooses not to identify the Respondent(s), the reported incident will not be processed as a complaint under Section V. The Reporting Party's option is limited to counseling and education.

If the Reporting Party is a student, the complaint will be made to the Vice Chancellor for Student Affairs.

If the Reporting Party is a faculty member as defined in the contractual agreement between the University of Hawaii and the University of Hawaii Professional Association, Article 3, Paragraph A, Section 1, the complaint will be made to the Dean/Director of the appropriate College/Unit and/or EEO/AA Coordinator. If the Reporting Party is a staff member, the complaint will be made either to the Vice Chancellor for Academic Affairs or the Vice Chancellor for Administrative Affairs of the Administraive Officer of the appropriate unit and/or EEO/AA Coordinator.

If the Reporting Party is an administrator, the complaint will be made to the administrator's immediate superior.

If the relevant administrative position is vacant or if the person is the Respondent, the Chancellor will assign the case to an appropriate administrator.

Formal investigations may only be conducted when a complaint is received within 180 calendar days from the last incident of sexual harassment. Therefore, any person who wishes to make a report of sexual harassment is encouraged to do so as soon as possible.

1. Good Faith Requirement for Filing a Complaint

The Reporting Party should be aware that reports or complaints filied which he/she knows is false or frivolous may subject him/her to appropriate administrative action for employees and to action under the Student Conduct Code for students. UH Hilo will not investigate a complaint based on allegations that it determines to be clearly false, frivolous or otherwise inappropriate. The Vice Chancellor for Student Affairs and the EEO/AA Coordinator are given authority to dismiss complaints if not sufficiently severe or pervasive or quid pro quo sexual harassment.

2. Form of the Complaint

The Sexual Harassment Complaint Form shall contain the name of the Respondent, a clear and concise statement of allegations, and enough detail, including the name(s) of witness(es), to enable the Investigating Officer to conduct an investigation, and provide the Respondent with proper notice of the complaint and an opportunity to respond to specific allegations.

Complaints shall be as comprehensive as possible at the time of filing, that is to say, every aspect (time, dates, places, significant circumstances) of the complaint must be included. Acts of retaliation shall be treated as additional allegations and investigated in a timely manner in accordance with these procedures. If the Reporting Party has other discrimination claims related to the sexual harassment allegations, these shall also be raised in the initial complaint.

A Sexual Harassment Complaint Form must be signed and dated by the Reporting Party which shall be taken as evidence of his/her affirmation that all statements made in the complaint are true and accurate; must have sufficient detail (dates, times, circumstances of specific incidents, names or witnesses, etc.) to determine the nature of the harassment and to determine whether the allegations, if true, would constitute sexual harassment; and must include an address and phone number (of either the Reporting Party or his/her representative) to which all future correspondence should be addressed. Sexual harassment complaints will be filed on the Sexual Harassment Complaint Form (SHCF), available through the EEO/AA Office, Student Sexual Assessment Advisor, the Office of Vice-Chancellor for Student Affairs, or any other Administrative Officer).

3. UH Hilo Initiated Investigation

UH Hilo may initiate an investigation based upon information provided, in whole or in part, by the Reporting Party indicating that a violation of Executive Policy E1.203 may have occurred.

C. INFORMAL COMPLAINT PROCEDURE

If the Reporting Party consents, and informal resolution options are accessible and appropriate, an attempt to facilitate a mutually agreeable resolution involving all necessary parties shall be undertaken. This informal resolution process, conducted by the appropriate Administrative Officer , shall include participation by the Reporting Party and the Respondent. It may also include, as necessary for the informal resolution, a representative from the Office of the University General Counsel, a representative from the Office of Vice-Chancellor for Student Affairs (when the Reporting Party or Respondent is a student), a representative from the EEO/AA Office (when the Reporting Party or Respondent is an employee), the Student Sexual Harassment Advisor, and if applicable, a representative of the Collective Bargaining Unit. Participation in an informal resolution procedure does not imply an admission of guilt by any participant.

Upon receipt of the completed and signed Sexual Harassment Complaint Form, the appropriate Administrative Officer will within twenty (20) working days attempt to resolve the complaint. An informal complaint will be considered to have been resolved when all parties have stated, in writing, to the Administrative Officer who has directed the procedure, their acceptance of the outcome of this procedure. A case which is resolved informally shall not be the subject of a formal complaint.

D. FORMAL INVESTIGATION PROCEDURE

If an informal resolution is not deemed appropriate (e.g., if the report contains allegations of sexual assault¹ quid pro quo sexual harassment, among others), or if attempts to resolve the situation informally do not succeed, the allegations received will be transmitted to the Investigating Officer, that is, the Vice Chancellor for Student Affairs if the Reporting Party is a student and the EEO/AA Coordinator if the Reporting Party is an employee, who shall then conduct a thorough and timely investigation of the complaint.

1. Predecisional Relief

In all cases of alleged sexual harassment, the Respondent is deemed innocent until a final UH Hilo decision has been reached under this administrative procedure.

Predecisional relief will be available when both parties are in agreement OR when the circumstances make it appropriate to take predecisional action. In the former instance, the Investigating Officer must have discussed the situation and alternative solutions with both parties. In the latter instance, the Chancellor who is considering a predecisional action should work in consultation with the Office of the General Counsel.

2. Investigation

Once the complaint is signed and deemed sufficient and a Sexual Harassment Complaint Form signed, the Investigating Officer shall inform the Respondent of the allegations, by hand delivery or certified mail, within five (5) working days of the date the complaint was accepted for investigation. The notice to the Respondent shall contain a copy of the complaint, a copy of E1.203 Sexual Harassment Policy and Procedural Guidelines, and a copy of the "University of Hawaii at Hilo Sexual Harassment Complaint Procedures." The notice shall also include a warning of UH Hilo's non-retaliation policy. The notice shall inform employees of their right to consult counselor to seek representation through their union and shall inform students of counseling support available through the Counseling Center. The Respondent shall have ten (10) working days from receipt of the notice to respond in writing to the complaint. The Investigating Officer may permit one additional ten (10) working day extension to the Respondent upon his/her written request.

Respondent's silence shall be construed as a denial. The investigation will be conducted accordingly. The investigation shall officially commence once the Investigating Officer informs the Respondent of the allegations and UH Hilo's non-retaliation policy. The Investigating Officer shall interview the Reporting Party, the Respondent (if Respondent is willing), and all witnesses deemed necessary, and shall gather additional information pertinent to the allegations.

The Investigating Officer shall complete the investigation within forty five (45) working days. Every attempt shall be made to complete the investigation within the time period provided; however, extensions may be approved by the Chancellor for good cause. One ten (10) working day extension may be granted by the Chancellor. If an extension is granted, the Chancellor shall send a written notice to each party of his/her designated representative informing them of the extension. (See Appendix, "Timetable for the Formal Complaint Procedure")

3. Fact-Finding Report

The Investigating Officer shall prepare a fact-finding report, which shall contain the allegations and factual findings, including undisputed and disputed facts. The report shall be transmitted to the Chancellor. The Reporting Party/Respondent may request a summary of the fact finding report.

Decision Making

a. "No-cause" decision by the Investigating Officer.

The Investigating Officer may determine that the allegations raised in the complaint do not support a claim of sexual harassment. In such cases, the Investigating Officer shall issue a "no-cause" decision and shall close the case by informing all relevant parties in writing. The Reporting Party may appeal the "no-cause" decision by writing to the Chancellor within ten (10) working days of receiving the decision.

b. Decision by the Chancellor or his/her designee, hereafter referred to as the "Decision Maker".

Upon receipt and review of the fact-finding report and investigative file, the Decision Maker shall issue a written decision within fifteen (15) working days. Upon written request by either party, the Decision Maker may schedule a meeting with both parties and the Investigating Officer. If a meeting is convened, the Decision Maker will issue a written decision within ten (10) working days after the date of the meeting. Decisions rendered after the above time period allowed herein shall be accompanied by a statement of reasons.

The Decision Maker shall issue a written decision on whether the preponderance of the evidence supports a "cause finding" or a "no-cause finding." The parties shall be notified of the decision in writing.

(1) If a "no-cause finding" is issued, the Decision Maker shall notify the parties. (2) If a "cause finding" is issued, the Decision Maker shall determine the appropriate remedies, including corrective actions to stop the sexual harassment, prevent recurrence, and ensure a workplace and educational environment free from sexual harassment. Disciplinary actions, in the case of students, shall be governed by the Student Conduct Code; in the case of included employees, by the applicable collective bargaining agreement; and for excluded employees, by the applicable administrative procedures.

5. Appeal Process

a. Investigating Officer's Decision.

If the Investigating Officer issues a "no-cause" decision, the Reporting Party may appeal the "no-cause" decision by writing to the Chancellor within ten (10) working days from the receipt of the decision.

The Chancellor or designee shall issue a written decision within ten (10) working days. This decision shall be final.

b. Decision Maker's Decision

The Reporting Party or Respondent may appeal the Decision Maker's decision within the ten (10) working days from receipt of the written decision. Appeals shall be in writing and addressed to the Chancellor, identifying specific points of disagreement with the decision. Unless it was not reasonably available or discoverable prior to the closing of the record, new evidence shall not be accepted at the appeal stage. The Chancellor or designee shall render a written decision on the appeal within fifteen (15) working days based on a review of the fact-finding report, the investigative file, and the Decision Maker's decision. Decisions rendered after the time period allowed herein shall be accompanied by a statement of reasons to the parties.

The Chancellor or designee may reverse the decision if it is found that:

(1) the Decision Maker abused his or her discretion; (2) the Decision Maker erroneously interpreted or applied relevant University policies and/or procedures; or (3) the preponderance of the evidence failed to support the decision. The Chancellor or designee shall recognize the Decision Maker's assessments of the credibility of witnesses and shall reverse them only if there is reason to believe that the Decision Maker clearly erred.

6. Record Keeping

a. Cause finding. An official record will be kept of all cases that result in cause finding. Records relating to a sexual harassment complaint will be maintained in the office of the EEO/AA Coordinator for a period of three years or three years after the most recent confirmed sexual harassment incident involving the same Respondent.

Confidentiality of records under this section is subject to the provisions of State of Hawaii Law.

b. No cause finding. All records relating to the complaint, with the exception of anonymous statistical abstracts, will be immediately destroyed, except for one copy to be retained for 3 years in the University Office of Legal Counsel.

VI. Retaliation

UH Hilo shall not tolerate acts of retaliation. Retaliation is any adverse or hostile action, expressed or implied, directed against any individual involved in a sexual harassment complaint or resolution as a result of his or her involvement.

Any individual believing he or she has been, or is being subjected to retaliation should immediately notify the Investigating Officer. Supervisors (including department chairs) should report any acts which appear to be retaliatory in nature to the Investigating Officer. All reports of retaliation shall be investigated by the Investigating Officer, and where appropriate, the Chancellor may grant predispositional relief. If retaliation is deemed to have occurred, appropriate disciplinary actions shall be taken in accordance with University policies and procedures and/or applicable collective bargaining agreements.

VII. Prevention Programs

The University is committed to preventing incidents of sexual assault. Counseling and education may be provided and arranged by the EEO/ AA Office, the Sexual Harassment Advisor, the Women's Center, and by other resources upon referral. Every effort will be made to ensure confidentiality and anonymity when members of the UH Hilo community use the counseling and education services; however , absolute confidentiality and anonymity cannot be guaranteed. On-going training will be available for all employees regarding sexual harassment policies, procedures, and resources. Pro- active programs addressing issues of sexual harassment will be provided for students by various campus units including athletics, residence halls, and student life programming during the academic year.

VIII. REPORTING AND RELEASE OF INFORMATION

Each March, the Chancellor shall make public a report on the past calendar year's activities at UH Hilo related to sexual harassment complaints. The document shall be based upon reports from the Administrative Officers.

The report shall provide statistics on all sexual harassment reports and complaints. For each formal complaint the report shall indicate the broad classification of the Reporting Party, if available, and the Respondent, the nature of the complaint, the level at which the complaint was resolved, and whether a "cause finding" or "no-cause finding" was made. In the case of a "cause finding," the nature of the corrective and/or disciplinary actions shall be reported in accordance with Chapter 92F, Hawaii Revised Statutes. The report shall also detail all educational efforts made by UH Hilo to eliminate sexual harassment during the past year. The report itself shall play a major role in informing the UH Hilo community about the problems of sexual harassment. Accordingly, the Chancellor should seek to have it receive the widest possible circulation within the UH Hilo community. The identities of individuals sanctioned for sexual harassment shall be subject to the disclosure provisions of Chapter 92F, Hawaii Revised Statutes.

Sexual harassment investigations and resolutions shall be conducted with the utmost discretion. Although every effort shall be made to maintain confidentiality, absolute confidentiality cannot be guaranteed. Certain information may be disclosed to appropriate administrators, the Respondent, and witnesses, among others, in order to investigate and resolve complaints. Information may also be disclosed if required by law, rule, regulation, or by order of a court of competent jurisdiction or arbitrator selected under a collective bargaining agreement.

IX. REVISION TO THE ADMINISTRATIVE PROCEDURE

The Chancellor shall convene periodically a committee, comprised of no fewer than five (5) individuals representing faculty, administrators, staff, and students, to examine the annual reports of sexual harassment and to determine whether UH Hilo is meeting its obligation to successfully curtail sexual harassment. Based on the review of the report and consideration of other relevant material, this committee shall recommend, if necessary, amendments to the UH Hilo sexual harassment complaint procedure. Any interested person or group may submit proposed changes and/or input to the Chancellor's office for consideration by the committee.

Sexual Harassment Complaint Form (pdf)

Timeline for the Formal Complaint Procedure