Employee Freedom from Discrimination, Harassment, and Retaliation (G/P)

Guideline/Procedure
4.0901.01.1
Effective date: 04/26/21

Purpose

The College complies with nondiscrimination regulations under the following laws, as amended:

  • Title VII of the Civil Rights Act of 1964, as amended
  • Vietnam Era Veterans Readjustment Act of 1974
  • Section 504 of the Rehabilitation Act of 1973
  • The American with Disabilities Act of 1990
  • Age Discrimination Act in Employment of 1967
  • Uniformed Services Employment and Reemployment Rights Act (USERRA)
  • Executive Order 11141
  • Equal Pay Act
  • The Genetic Information Non-discrimination Act
  • Chapter 21 of the Texas Labor Code

In compliance with all applicable state and federal employment non-discrimination laws, the College will require the following:

  1. The College will recruit, hire, train and promote individuals without regard to or on the basis of race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age, veterans’ status, disability, genetic information or any other basis prohibited by law.
  2. The College will ensure that all personnel actions including compensation, benefits, benefits programs, transfers, and professional development, will be administered without unlawful discrimination.
  3. All advertising and marketing materials shall contain a clear statement of the College’s Equal Employment Opportunity policy.
  4. All veterans and individuals with a disability who wish to identify themselves and avail themselves of the resources of the College shall be invited to identify themselves to a College representative at any time.
  5. The College will reasonably accommodate the religious observances and practices of an employee or prospective employee unless such accommodations creates an undue hardship on the College’s educational and business operations. Employees who require a religious accommodation should speak with their immediate supervisor prior to taking leave to accommodate a religious observance or practice. Employees should provide the supervisor with advance notice as soon as possible.
  6. An employee with a disability who requires an accommodation should contact the Office of Human Resources, Benefits Section, to complete an application for an accommodation. The College will strive to reasonably accommodate qualified individuals with a disability. The employee has a responsibility to provide adequate information as part of the accommodation process.
  7. The College’s Equal Employment Opportunity policy shall be posted on all the campuses and on the website.

Procedures

  1. Reporting

An employee or applicant (“complainant”) who believes they have been subjected to discrimination, harassment, or other behavior prohibited by this rule (hereafter referred to as “prohibited conduct”) may report the alleged acts to their immediate supervisor, or the Compliance Director.

Any supervisor who receives a report of prohibited conduct shall immediately notify the Compliance Director listed below and take any other steps required by this rule or applicable Board Policy.

Reports of prohibited conduct shall be made as soon as possible after the alleged act or knowledge of the alleged act. A failure to promptly report may impair the College’s ability to investigate and address the prohibited conduct.

Complaints should be in writing (although verbal complaints will be accepted) and should include details concerning the conduct that gives rise to the complaint, the name of the person against whom the complaint is made (hereafter referred to as “respondent”), and the names of any witnesses.

Upon receipt or notice of a report, the Compliance Director shall determine whether the allegations, if proven, would constitute prohibited conduct as defined by this rule. If so, the College shall immediately authorize or undertake an investigation, regardless of whether a criminal or regulatory investigation regarding the same or similar allegations is pending. If the Compliance Director determines that the allegations, if proven, would not constitute prohibited conduct as defined by this rule but may constitute a violation of other College District rules or regulations, the Compliance Director shall refer the complaint for consideration under the appropriate policy or administrative regulation.

Complaints should be submitted to:

ACC Compliance Office
Compliance Director
(512) 223-7964
compliance@austincc.edu

Any employee may pursue any charge of discrimination or harassment with the Texas Workforce Commission (“TWC”) or the federal Equal Opportunity Employment Commission (“EEOC”). It is unlawful to retaliate against any employee for opposing the practices prohibited by the State of Texas or comparable federal law or for filing a complaint with, or for otherwise participating in, an investigation, proceeding, or hearing conducted by the TWC or EEOC.

The TWC’s Civil Rights Division’s programs provide an avenue for current and former employees (or people who applied for employment) to file a complaint if they believe they have been discriminated against in an employment transaction. TWC accepts complaints if you believe the treatment you received from the employer was because of your race, color, national origin, age, religion, sex, disability, or because of retaliation for participating and/or filing another discrimination complaint and occurred within 180 days of the filing of the complaint.

Employees who believe they may have been discriminated against may get more information on filing a complaint through TWC by visiting:  http://www.twc.state.tx.us/jobseekers/how-submit-employment-discrimination-complaint

  1. Anonymous Complaints

The College will not respond to anonymous reports of prohibited conduct, or reports made by third parties not directly involved.

  1. Interim Measures (Supportive & Protective)

When appropriate, prior to or during an investigation, the College shall promptly take interim action calculated to prevent prohibited conduct during the course of an investigation.

  1. Confidentiality

All parties will be informed that confidentiality helps enhance the integrity of the investigation, protect the privacy interests of the parties, and protect the participants from statements that might be interpreted to be retaliatory or defamatory. At the beginning of the investigation, the complainant and respondent will be asked to keep information related to the investigation private during the pendency of the investigation in order to prevent disruption in the work environment or interfere with the investigation. This does not preclude a party from sharing information with family, legal counsel, support persons or others as necessary in connection with the marshalling and presentation of evidence in connection with the investigation. Witnesses also will be asked to respect the confidential nature of the investigative process, to the extent consistent with applicable law.

The College will protect the privacy of individuals involved in a report of discrimination or harassment to the extent allowed by law and College policy. However, there may be times when disclosure of information is required. For example, when a written complaint is investigated, the respondent will receive a copy of the allegations, including the name of the individual(s) who filed the complaint, except when disclosure is prohibited by law. In all cases, efforts will be made to protect the privacy of individuals.

  1. Investigation Process

In response to a report of prohibited conduct as defined in Administrative Rule 4.0901.01; the Compliance Director will assign an investigator to conduct an investigation, unless one of the following exceptions apply:

The College lacks jurisdiction over a party to the complaint;

    1. If a complainant stops participating in the investigation process, the College will either serve as the complainant moving forward, or the Compliance Director will resolve the complaint, if appropriate, and modify procedures as necessary;
    2. If a respondent admits responsibility for the alleged conduct, the Compliance Director shall have discretion to resolve the complaint outside the investigation process or to provide modified procedures and appropriate sanctions/remedies to prevent the recurrence of the conduct; or
    3. If the report of conduct as alleged does not rise to the level of unlawful prohibited conduct, it may be addressed administratively, in consultation with the appropriate personnel.
    4. The complainant and respondent will be provided information about the process, procedures, and the specific complaint.

During the investigation, the complainant and respondent will be afforded a full and complete opportunity to present their respective cases to the investigator. Both the complainant and the respondent may present evidence and suggest relevant witnesses to be interviewed and relevant questions for the investigator to ask the other party or witnesses. The investigator will determine the relevance of evidence, witnesses, and questions. The complainant or respondent may record their interview and subsequent meetings in which they participate, with advance notice to the investigator.

i.  Modification of Investigation Process

The College will follow the investigation process described herein barring exceptional circumstances. In rare instances, however, the College may be required to adapt or modify the investigation process to ensure prompt and equitable resolution of a report of prohibited conduct. The College reserves this right. In such instances, the College will notify both parties of the modification of the investigation process and, if appropriate, the exceptional circumstances requiring the College to adapt or modify the investigation process.

ii.  Consolidation of Investigations

The Compliance Director has the discretion to consolidate into one investigation multiple reports against a respondent and/or cross-complaints between a complainant and a respondent, if the evidence related to each incident would be relevant and probative in reaching a determination on the other incident. Matters may also be consolidated where they involve multiple complainants, multiple respondents, or related conduct.

iii.  Integrity of Proceeding

These procedures are entirely administrative in nature and are not considered legal proceedings, but rather procedures designed to address policy violations.

While either party may bring a legal representative or other advisor to the proceeding, the role of the lawyer or advisor is limited to providing advice and counsel to that party. The lawyer or other advisor is not permitted to speak on behalf of the party, to make arguments, or to cross-examine individuals, or otherwise to act in a representational capacity or as a proxy for the party. If a party intends to bring a lawyer or advisor, they are to provide notice of this decision in writing no less than 3 days before the proceeding. The process will not be delayed due to the unavailability of an advisor or lawyer. An advisor or lawyer may be dismissed from any part of this process for unnecessary disruption of a meeting or proceeding or if they are deemed to have intimidated or otherwise harassed a party through verbal, nonverbal, or physical actions.

The College reserves the right to serve as a complainant in any complaint, and to bring complaints against a respondent. This is unusual but can occur when the College determines there is sufficient information to proceed, but an actual complainant either cannot or will not cooperate in this process.

iv.  Initial Report, Preliminary Inquiry, and Determination of Jurisdiction

Upon receiving a report of a potential violation of this rule, the Compliance Director will assess the report independently, or in concert with the Vice President, Human Resources, or Supervisor, (depending on who the report was made to and depending on the facts and circumstances being alleged).

If necessary, the Compliance Director may conduct a preliminary inquiry to gather information to determine if this rule has jurisdiction over the alleged prohibited conduct reported.

The Compliance Director will meet separately with the parties if possible to provide notice that an investigation will ensue. Both parties will receive a copy of this rule, and will be advised on the offense being alleged, the date and time that the incident is alleged to have occurred, and the name of the investigator (if known at that time). The Compliance Director will also advise the parties that they have the right to present any evidence and/or witnesses that they would like included in the fact-finding.

If an employee resigns from the College pending a disciplinary charge alleging that the employee violated this rule, the College may continue the investigation if determined to be in its best interests of the College or for purposes of determining whether the employee is eligible for rehire.

Employee College email may be searched with the approval of the Vice President, Human Resources.

  1. Investigation Results/Sanctions & Remedial Measures

The investigator shall document the results of the investigation in a written report and shall submit the report to the Compliance Director. The report will contain a summary of issues, key findings of fact, and an analysis of disputed facts based on all available evidence and witnesses. The report will conclude with a determination of responsibility for a violation of this rule or related policies based on a preponderance of the evidence standard and will include a discussion of the policy violations implicated by the complaint. “Preponderance of the evidence” means that the information and facts establish that a policy violation “more likely than not” occurred.

If at the conclusion of the investigation the respondent is found responsible for one or more violations of Board Policy DIAB and AR 4.0901.01, the College will issue sanctions commensurate with the violation(s). The Compliance Director, in consultation with the Vice President, Human Resources, will determine and issue any sanctions for employees who are found responsible for a violation(s) of this rule. After consultation with the Vice President of Human Resources, a final decision will be conveyed, in writing, to the complainant and respondent.

Sanctions are effective immediately. If the respondent appeals the findings contained in the outcome letter, the sanctions will continue in effect during the appeal.

Possible sanctions for employees are set forth in Administrative Rule (AR) 4.1201.03 and Guideline/Procedure (G/P) 4.1201.03.1. A sanction resulting in a recommendation for termination of employment shall be made in accordance with applicable Board Policy and College policies and rules.

Absent a finding of responsibility, remedial and protective measures may be issued if warranted to address inappropriate behavior that does not rise to the level of a violation of this rule. Remedial measures may include counseling, monitoring, training, or other preventative measures intended to educate an individual as to appropriate behaviors and boundaries. If during an investigation under this rule, conduct is found to be in violation of other ACC policies or procedures or statutes, sanctions may be issued within this process after consultation with the appropriate personnel with the requisite authority.

  1. Grounds for Appeal

The respondent may appeal the outcome of an investigation. Appeals are not heard in person; instead appeals are resolved through submission of written documents.

A request for appeal must be submitted in writing within five (5) College business days from the date on the letter notifying the respondent of the finding. The Executive Vice President in the respondent’s line of supervision will hear the appeal.

Appeals shall be granted only on one or more of the following grounds:

    • If there was a specified procedural error (or errors) in the interpretation of the College regulations that were so substantial as to effectively deny the party appealing a fair investigation or resolution process;
    • If new and significant evidence has become available which could not have been discovered by a properly diligent person during the original investigation; or
    • If the final action(s) is/are disproportionate to the offense for which the respondent was found responsible.

Disagreement with the outcome of the investigation does not in and of itself constitute grounds for appeal.

The appellate review and decision will be based on the written complaint and documentation contained in the investigative record. The appropriate Executive Vice President will render a decision and may issue recommendations if necessary.

The Executive Vice President may consult with the case investigator regarding fact based questions about the content of the investigation if necessary, based on the nature of the appeal.

The appeal should be resolved within ten (10) College business days of the date the appeal was filed. The decision is final and is not appealable any further within ACC.

Decisions regarding employee terminations will be made in accordance with requisite Board Policy and Administrative Rules.

If an appeal is not received within the timeframe, the matter will be considered closed and final.

  1. Records

The Office of Compliance will keep a record of the complaints, investigations, proceedings and outcomes. All records of the complaint process will be maintained in a secure file. All records are subject to the Texas Open Records Act and other pertinent state and federal laws.

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