Affirmative Action
Americans with Disabilities Act
Harassment
Title V
Title VI
Title VII
Title IX
Equal Pay Act of 1963 (EPA)
ADEA
Sections 501 and 505
Statement of Values
Sexual Harassment Policy
Efforts to enhance the affirmative action program at Nashville State Community College continue. It is the intent of Nashville State to fully comply with Executive Order 11246, as amended, the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, The Vietnam Veterans Readjustment Act of 1974, as amended, the Equal Pay Act of 1963, as amended, the Age Discrimination in Employment Act of 1967, as amended, the Age Discrimination Act of 1975, the Pregnancy Discrimination Act, applicable state statutes and all regulations promulgated thereto, to promote and ensure equal opportunity for all persons without regard to race, color, religion, national origin, disability status, age or status as a qualified veteran with a disability. Nashville State complies with the following laws and regulations:
Title VII of the Civil Rights Act of 1964 – prohibits employment discrimination based on race, color, religion, sex, or national origin
Equal Pay Act of 1963 (EPA) – protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination
Age Discrimination in Employment Act of 1967 (ADEA) – protects individuals who are 40 years of age or older
Title I and Title V of the American with Disabilities Act of 1990 (ADA) – prohibit employment discrimination against qualified individuals with disabilities in the private sector and in state and local governments
Sections 501 and 505 of the Rehabilitation Act of 1973 – prohibit discrimination against qualified individuals with disabilities who work in the federal government
Title VI - prohibits discrimination on the basis of race, color and national origin.
Title IX prohibits discrimination on the basis of sex (also covers sexual harassment). More information on harassment
Americans with Disabilities Act (ADA) – prohibits job discrimination because of a disability and requires affirmative action to employ qualified individuals with disabilities who, with reasonable accommodation, can perform the essential functions of their jobs. Individuals requiring accommodations should contact the Director of Human Resources to obtain an Employee ADA Self-Disclosure/Accommodations Request and Certification of Physician forms. More information on ADA
Harassment – Harassment in any form will not be tolerated at Nashville State. Nashville State follows TBR Guideline P-080. More about harassment
Sexual Orientation – Neither students nor employees of Nashville State shall be discriminated against on the basis of those individuals sexual orientation.
The college’s Affirmative Action Plan is updated annually and a copy of the plan, minus statistical data, is available to all employees in Microsoft Outlook in the Affirmative Action public folder as well in the Office of Human Resources. The President has appointed the Director of Human Resources to serve as the Equal Opportunity/Affirmative Action Officer for the college. The President, Vice Presidents, Deans, and Department Heads are committed to the goals set forth in the plan. Each will work with the Director of Human Resources in attaining established goals.
Americans with Disabilities Act - General Information
July 26, 1990, the Americans with Disabilities Act (ADA), was signed into law by then President George Bush.
TItle I of the ADA essentially states that an employer cannot discriminate against qualified applicants and employees on the basis of their disabilities. Covered employers are those who have 15 or more employees (effective 7/26/94). Section 504 employment requirements in most respects are the same as those of Title I, because the ADA was based on the Section 504 regulatory requirements.
Who is Protected by Title I?
The ADA prohibits employment discrimination against "qualified individuals with disabilities." A qualified individual with a disability is an individual with a disability who meets the skill, experience, education, and other job-related requirements of a position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of a job.
To understand who is and who is not protected by the ADA, it is first necessary to understand the Act's definition of an "individual with a disability" and then determine if the individual meets the Act's definition of a "qualified individual with a disability."
The ADA definition of individual with a disability is very specific. A person with a "disability" is an individual who:
* Has a physical or mental impairment that substantially limits one or more of his/her major life activities;
* Has a record of such an impairment; or
* Is regarded as having such an impairment.
Major Life Activities
To be a disability covered by the ADA, an impairment must substantially limit one or more major life activities. These are activities that an average person can perform with little or no difficulty. Examples are:
* walking
* seeing
* speaking
* hearing
* breathing
* learning
* performing manual tasks
* working
* sitting
* standing
* lifting
* reading
The regulations provide three factors to consider in determining whether a person's impairment substantially limits a major life activity. 1. Its nature and severity; 2. How long it will last or is expected to last; 3. Its permanent or long term impact, or expected impact.
These factors must be considered because, generally, it is not the name of an impairment or a condition that determines whether a person is protected by the ADA, but rather the effect of an impairment or condition on the life of a particular person.
Reasonable Accommodation and the Undue Hardship Limitation
Reasonable accommodation is a critical component of the ADA's assurance of nondiscrimination. Reasonable accommodation is any change in the work environment or in the way things are usually done that results in equal employment opportunity for an individual with a disability.
An employer must make a reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability unless it can show that the accommodation would cause an undue hardship on the operation of its business. An employer is not required to lower quality or quantity standards to make an accommodation. Nor is an employer obligated to provide personal use items, such as glasses or hearing aids, as accommodations.
An employer is not required to provide an accommodation if it will impose an undue hardship on the operation of its business. Undue hardship is defined by the ADA as an action that is "excessively costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business."
In determining undue hardship, factors to be considered include the nature and cost of the accommodation in relation to the size, the financial resources, the nature and structure of the employer's operation, as well as the impact of the accommodation on the specific facility providing the accommodation.
"Faculty and staff wishing to request an ADA accommodation should contact Lori Maddox, ADA Coordinator, 353-3305. Students wishing to request ADA accommodations should contact Cindy Anderson (353-3721)."
Sexual Harassment Policy
Guideline No. P-080
SUBJECT: Harassment - Sexual or Racial
Purpose
The purpose of this guideline is to supplement Board policies 2:02:10:01 and 5:01:02:00 relative to the orderly resolution of complaints of sexual or racial harassment at the institutions, technology centers, and office of the Tennessee Board of Regents. Fair and prompt consideration shall be given to all complaints of harassment in accordance with the procedures set forth below. These procedures may be utilized by any employee, applicant for employment or student who believes he or she has been subjected to sexual or racial harassment. Former employees or students may file complaints concerning conduct which took place during the time of employment or enrollment provided the complaint is timely filed, and the conduct has a reasonable connection to the institution.
The institution must take measures to periodically educate and train employees regarding conduct that could constitute a violation of this guideline. All employees, including faculty members, are expected to participate in such education and training and to be knowledgeable of policies and guidelines concerning harassment.
All faculty members, students and staff are subject to this guideline. Any faculty member, student or staff found to have violated this guideline by engaging in behavior constituting sexual or racial harassment will be subject to disciplinary action which may include dismissal, expulsion or termination, or other appropriate sanction.
All faculty members, students and staff, particularly management and supervisory personnel, are responsible for taking reasonable and necessary action to prevent and discourage sexual or racial harassment, and are required to promptly report conduct that could be in violation of TBR and institutional policies and guidelines. Such reporting should occur when information concerning a complaint is received formally or informally.
All faculty and staff members are required to cooperate with investigations of alleged sexual or racial harassment. Failure to cooperate may result in disciplinary action being taken up to and including termination. Students are also required to cooperate with these investigations; failure to do so may result in disciplinary action up to and including expulsion.
II. General Statement
Sexual harassment and racial harassment have been held to constitute forms of discrimination prohibited by Title VI, Title VII of the Civil Rights Act of 1964, as amended and Title IX of the Educational Amendments of 1972. An institution or technology center may be held liable pursuant to Title VI or Title VII and/or lose federal funds pursuant to Title IX for failure to properly investigate and remedy claims of sexual or racial harassment.
A. Sexual Harassment
Generally, sexual harassment may be defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when one of the following criteria is met:
1. submission to such conduct is made either explicitly or implicitly a term or condition of the individual's employment or of the individual's status in a program, course or activity;
2. submission to or rejection of such conduct by an individual is used as a basis for employment decisions, a criterion for evaluation, or a basis for academic or other decisions affecting such individual; or
3. such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or educational experience or creating an intimidating, hostile or offensive work or educational environment.
Sexual harassment can take many forms, but most sexual harassment falls into three categories: verbal, visual, and physical. Some examples of behavior that may constitute sexual harassment are:
- Refusing to hire, promote, or grant or deny certain privileges because of acceptance or rejection of sexual advances.
- Promising a work-related benefit or a grade in return for sexual favors.
- Suggestive or inappropriate communications, e-mail, notes, letters, or other written materials displaying objects or pictures which are sexual in nature that would create hostile or offensive work or living environments.
- Sexual innuendoes, comments, and remarks about a person's clothing, body or activities.
- Suggestive or insulting sounds.
- Whistling in a suggestive manner.
- Humor and jokes about sex that denigrate men or women.
- Sexual propositions, invitations, or pressure for sexual activity.
- Use in the classroom of sexual jokes, stories, remarks or images in no way germane to the subject matter of the class.
- Implied or overt sexual threats.
- Suggestive or obscene gestures.
- Patting, pinching, and other inappropriate touching.
- Unnecessary touching or brushing against the body.
- Attempted or actual kissing or fondling.
- Coerced sexual intercourse.
- Sexual assault.
The examples listed above are not exclusive, but simply represent types of conduct that may constitute sexual harassment. Campus policies may delineate additional examples.
Not every act that might be offensive to an individual or a group will be considered harassment. Whether the alleged conduct constitutes sexual harassment depends upon the record as a whole and the totality of the circumstances, such as the nature of sexual advances in the context within which the alleged incident occurs. Harassment does not include verbal expressions or written material that is relevant and appropriately related to course subject matter or curriculum.
Please note that sexual assaults may be criminal acts and as such, investigation and processing by the criminal justice system, local police, campus security and crisis intervention centers may supersede or occur in addition to the process developed under this Guideline.
B. Racial Harassment
Generally, racial harassment is defined as any person's conduct which unreasonably interferes with an employee's or student's status or performance by creating an intimidating, hostile, or offensive working or educational environment. Harassment on the basis of race, color, or national origin, includes offensive or demeaning treatment of an individual, where such treatment is based on prejudiced stereotypes of a group to which that individual may belong. It includes, but is not limited to, objectionable epithets, threatened or actual physical harm or abuse, or other intimidating or insulting conduct directed against the individual because of his/her race, color, or national origin. Title VII requires employers to take prompt action to prevent bigots from expressing their opinions in a way which abuses or offends their coworkers.
III. Consensual Relationships
Intimate relationships between supervisors and their subordinates, and between faculty members and students are strongly discouraged due to the inherent inequality of power in such situations. These relationships could lead to undue favoritism or the perception of undue favoritism, abuse of power, compromised judgment or impaired objectivity.
Engaging in a consensual relationship with a student over whom the faculty member has either grading, supervisory, or other evaluative authority (i.e., member of dissertation committee, thesis director, etc.) constitutes a conflict of interest. The faculty member must take steps to remove the conflict by assigning a different supervisor to the student; resigning from the student’s academic committees; or by terminating the relationship at least while the student is in his/her class. Likewise, it is a conflict of interest for a supervisor to engage in a consensual relationship with a subordinate over whom he or she has evaluative or supervisory authority. The supervisor must take action to resolve the conflict of interest by, for example, assigning another individual to supervise and/or evaluate the subordinate.
IV. Procedures
A. General
1. The following procedures are intended to protect the rights of the aggrieved party (hereinafter, "the Complainant") as well as the party against whom a complaint of harassment is lodged (hereinafter "the Respondent"), as required by state and federal laws. Each complaint must be properly and promptly investigated and, when warranted, appropriate disciplinary action taken against the Respondent.
2. The Office of General Counsel shall always be consulted prior to investigation. If institutions have on-campus legal counsel, that office must be consulted. Hereinafter, references to "Legal Counsel" shall mean either the Office of General Counsel or on-campus legal counsel, as appropriate.
3. In situations that require immediate action because of safety or other concerns, the institution may take any administrative action which is appropriate, e.g., administrative leave with pay pending the outcome of the investigation. Students may be placed on interim suspension under the appropriate circumstances pending the outcome of the investigation. Legal Counsel should be contacted before any immediate action is taken.
4. Each employee, applicant for employment and student shall be notified of the name, office, and telephone number of the designated EEO/AA, Student Affairs, Title VI or Title IX officer(s) responsible for assuring compliance with this guideline, Board policy, and federal law.
B. Filing Complaints
1. Any current or former student, applicant for employment or current or former employee who believes he or she has been subjected to harassment at an institution or technology center or who believes that he/she has observed harassment taking place shall present the complaint to the designated EEO/AA, Student Affairs, Title VI or Title IX officer (hereinafter "the Investigator") responsible for compliance with Title VII of the Civil Rights Act of 1964, Title VI, or Title IX of the Education Amendments of 1972.
2. Complaints must be brought within 365 days of the last incident of harassment. Complaints brought after that time period will not be pursued absent extraordinary circumstances. The determination of whether the complaint was timely or whether extraordinary circumstances exist to extend the complaint period must be made in conjunction with Legal Counsel.
3. Every attempt will be made to get the Complainant to provide the complaint in writing. The complaint shall include the circumstances giving rise to the complaint, the dates of the alleged occurrences, and names of witnesses, if any. Appendix A is a sample complaint form. The complaint shall be signed by the Complainant. However, when the Complainant refuses to provide or sign a written complaint, the matter will still be investigated and appropriate action taken. Complaints made anonymously or by a third party must also be investigated to the extent possible.
4. If the complaint does not rise to the level of harassment, the Investigator may determine to dismiss the complaint without further investigation after consultation with Legal Counsel. The Complainant should be informed of other available processes such as the employee grievance/complaint process, or a student non-academic complaint process.
C. Investigation
1. Legal Counsel shall be notified of the complaint, whether written or verbal, as soon as possible after it is brought to the attention of the Investigator and the investigation will be under the direction of Legal Counsel. All investigatory notes and documents shall be attorney work product. The Investigator shall notify the President/ Director that an investigation is being initiated.
2. When the allegation of harassment is against the EEO/AA, Student Affairs Officer, Title VI or Title IX Officer, the President/Director will identify an individual who has been trained in investigating such complaints to investigate the complaint and carry out the responsibilities assigned pursuant to this guideline. When the allegation of harassment is against the President of the institution, the EEO/AA shall notify the Office of the General Counsel who will assign an investigator who will make his/her report to the Chancellor.
3. When the Respondent is a student, the Student Affairs Office will investigate the complaint in compliance with the procedures outlined in this guideline. If a finding of violation is made, any resulting disciplinary action will be undertaken in compliance with the institution’s or technology center’s student disciplinary procedures.
4. When a student is involved as the Complainant, the Respondent or an individual interviewed, all documentation referring to that student shall be subject to the provisions and protections of the Family Educational Records and Privacy Act (FERPA) and Tennessee Code Annotated Section 10-7-504(a) (4) which requires that certain student disciplinary records are subject to disclosure pursuant to a public records request.
5. Investigation of complaints against employees of a Tennessee Technology Center (TTC) shall be initiated by the Vice Chancellor for Tennessee Technology Centers or his/her designee. In certain circumstances, the lead institution for the technology center may be asked to conduct the investigation. Investigations of complaints made against TTC students will be undertaken by TTC Student Services personnel. The TTC Directors are responsible for notifying the Vice Chancellor whenever a verbal or written complaint is made.
6. In consultation with and under the direction of Legal Counsel, the Investigator shall conduct an investigation of the complaint. The purpose of the investigation is to establish whether there has been a violation of the guideline. In conducting the investigation, the Investigator shall interview the Complainant, the Respondent, and other persons believed to have knowledge related to the investigation. It is the responsibility of the Investigator to weigh the credibility of all individuals interviewed and to determine the weight to be given information received during the course of the investigation.
7. To the extent possible, the investigation will be conducted in such a manner to protect the confidentiality of both parties. However, the Complainant, Respondent and all individuals interviewed shall be informed that the institution has an obligation to address harassment and that, in order to conduct an effective investigation, complete confidentiality cannot be guaranteed. Information may need to be revealed to the Respondent and to potential witnesses. However, information about the complaint should be shared only with those who have a need to know about it. The Complainant and Respondent shall also be informed that a request to inspect documents made pursuant to the Public Records Act may result in certain documents being released.
A Complainant may be informed that if he or she wants to speak privately and in confidence about harassment, he or she may wish to consult with a social worker, counselor, therapist or member of the clergy who is permitted, by law, to assure greater confidentiality.
Additionally, the Complainant may be given assurances that measures will be taken against the Respondent should there be retaliation against him or her. Retaliation is prohibited and should be reported to the investigator immediately.
8. The Investigator shall notify in writing the Respondent within five (5) working days of receipt of the complaint. The Respondent shall respond in writing to the complaint within five (5) working days following the date of receipt of the Investigator’s notification.
9. If either the Complainant or the Respondent is a student, the Investigator should communicate the prohibition against disclosure of personally identifiable information with regard to the student, based on FERPA.
10. The Complainant, the Respondent and all individuals interviewed shall be notified that any retaliation engaged in in connection with the complaint or its investigation is strictly prohibited regardless of the outcome of the P-080 investigation and may, in itself, be grounds for disciplinary action.
11. At any time during the course of the investigation, the Investigator may meet with both the Complainant and the Respondent individually for the purpose of resolving the complaint informally. If informal resolution is successful in resolving the complaint, a report of such, having first been reviewed and approved by Legal Counsel, shall be submitted to the President/Director.
12. If informal resolution is unsuccessful, the Investigator shall draft a report summarizing the investigation which shall be sent to Legal Counsel for review. Each report shall outline the basis of the complaint, including the dates of the alleged occurrences, the response of the Respondent, the findingsof the Investigator, whether there were any attempts made to resolve the complaint informally, a determination of whether there was a violation of the guideline, and recommendations regarding disposition of the complaint.
After review and approval by Legal Counsel, the report shall be submitted to the President/Director within twenty (20) working days following receipt of the complaint. If the complaint involves a technology center, a copy of the final report should also be sent to the Vice Chancellor for Tennessee Technology Centers. No working papers, statements, etc. generated in the investigation should be attached to the report. In rare situations where more than 20 working days are needed to complete the investigation, for reasons such as difficulty in locating a necessary witness, or complexity of the complaint, additional time may be taken, but only following notice to Legal Counsel and written notice to both the Complainant and the Respondent .
13. If, after investigation, there is insufficient evidence to corroborate the complaint or, in any situation in which the Complainant refuses to cooperate in the investigation, it may be appropriate to discuss the complaint with the Respondent, informing him or her that he or she is not being accused of a P-080 violation, but that the conduct alleged, had it been substantiated, could be found to violate this guideline. Any investigation and subsequent discussion should be documented and a report submitted as set forth in this procedure. It should also be noted that conduct which does not rise to the level of actionable harassment may, nevertheless, provide a basis for disciplinary action against the Respondent.
14. The President/Director shall review the Investigator’s report, and shall make a final written determination as to whether a violation has occurred and, what the appropriate resolution should be. After the President/Director has made this determination, the Investigator shall provide both the Complainant and the Respondent with a copy of the determination, along with a copy of the Investigator’s report.
15. If the investigation reveals evidence that a violation of the guideline has occurred, the President/Director may meet with the Respondent and/or the Complainant and attempt to resolve the problem by agreement. Appropriate steps must be taken to ensure that the harassment will not reoccur.
16. If a violation of this guideline is determined to have occurred, the Respondent shall be advised of his/her right to a hearing pursuant to the procedures set forth below. The Respondent must file the request for a hearing within ten (10) working days following receipt of the President’s/ Director’s determination.
17. After completion of the investigation and any subsequent disciplinary proceedings, all documentation shall be forwarded to Legal Counsel. However, copies of the President’s/ Director’s determination, the Investigator’s report, the complaint (if it concerns an employee) and documentation of any disciplinary action taken against the Respondent should be placed in a file maintained on campus. This file shall be maintained in a location designated by the President. If such action was taken, copies of documentation establishing disciplinary action taken against the Respondent, whether an employee or student, shall also be maintained in the Respondent’s personnel or student record, as appropriate.
Some documents involved in a P-080 matter may be subject to the Public Records Act and thus open to public inspection. Other documents may be protected under FERPA, the attorney/client privilege, or attorney work product and would not be releasable. If a Public Records request is received, Legal Counsel must be consulted prior to the release of any documents.
18. A complaint found to have been intentionally dishonest or maliciously made will subject the Complainant to appropriate disciplinary action.
D. Hearing
1. If the Respondent requests a hearing, he or she shall be advised of the established institutional procedures available for resolution of the matter in question which will generally be the procedure for the hearing of a grievance before a grievance committee.
2. The grievance hearing procedures shall include the following minimal requirements:
a. Notice to the Respondent of the hearing which must include a summary of the facts that form the basis of the violation; the date, time and place of the hearing; and, the rights afforded the Respondent during the hearing process.
b. The right of the Respondent to present his or her case.
c. The right of the Respondent to be accompanied by an advisor who may assist the Respondent but may not advocate on his or her behalf.
d. The right of the Respondent to call witnesses in his or her behalf.
e. The right of the Respondent to confront and cross-examine
3. In the following situations the Respondent must be given the option of either an institutional hearing, or of having the hearing held pursuant to the Tennessee Uniform Administrative Procedures Act (TUAPA):
a. The Respondent is a support staff employee whom the President/Director has determined should be demoted, suspended without pay or terminated; or,
b. The Respondent is a student whom the President/ Director has determined should be suspended or expelled.
The election of which hearing process to utilize must be in writing, signed by the Respondent, expressly waiving the TUAPA option.
If the Respondent elects to proceed pursuant to the TUAPA, Legal Counsel should be notified immediately.
4. When an allegation involves a tenured faculty member, the same informal and formal procedures set out above shall be utilized. Tenured faculty members shall have the same right to elect hearing procedures as set out in this section. However, where the investigation results in a finding that the harassment policy was violated and the President/Director concurs with that finding and determines that procedures pursuant to TBR Policies 5:02:03:10, 5:02:03:60, and 5:02:03:70 should be undertaken in consideration of the termination of a tenured faculty member, the matter will then proceed directly to a hearing under either the institutional policy for termination of tenure or TBR Policies 5:02:03:10, 5:02:03:60, and 5:02:03:70.
V. Discrimination or other types of Harassment
Each institution’s policy on sexual or racial harassment should reference other processes which concern allegations of discrimination or harassment based on other constitutionally protected classes. The policy may also wish to reference the availability of the general student and employee complaint and grievances processes.
Source: November 14, 1984 TBR Presidents Meeting and November 16, 1984 AVTS Sub-Council meeting. Revised: August 16, 1988 Presidents Meeting. Revised: February 14, 1989 - Presidents’ Meeting. Revised: November 10, 1992 - Presidents’ Meeting. Revised: August 13, 1996 - Presidents’ Meeting - February 13, 2001- Presidents’ Meeting; Revised: August 16, 2005 – Presidents’ Meeting. Revised: November 8, 2005 - Presidents’ Meeting;
