Systemwide Policy Prohibiting Discrimination, Harassment, and Retaliation Against Students and Applicants for Admission and Systemwide Procedure for Handling Discrimination, Harassment and Retaliation Complaints by Students
Executive Order: 1074
Effective Date: April 6, 2012
Title: Systemwide Policy Prohibiting Discrimination, Harassment and Retaliation Against Students and Systemwide Procedure for Handling Discrimination, Harassment and Retaliation Complaints by Students
Article I. Definitions
For purposes of this executive order, the following definitions apply:
Accused means the CSU, a CSU employee, another Student, or a Third Party against whom an allegation of Discrimination, Harassment or Retaliation has been made.
Age, as defined in California Government Code §12926(b), refers to the chronological age of any individual who has reached his or her 40th birthday.
CSU means the 23 campus system of the California State University, including the Office of the Chancellor (CO).
Campus or University means any of the 23 campuses of the CSU.
Complaint means a written communication that complies with Article VI. C alleging Discrimination, Harassment or Retaliation against the CSU, an employee, another Student, or a Third Party.
Complainant means an individual who is eligible to, and does, file a Complaint to report Discrimination, Harassment or Retaliation.
Disability means mental or physical disability as defined in California Education Code §66260.5.
Discrimination means adverse action taken against a Student by the CSU, a CSU employee, another Student, or a Third Party based on any Protected Status.
Gender, as defined in California Education Code §66260.7, means sex, and includes a person's gender identity and gender expression. Gender expression means a person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth.
Sex, as defined in California Government Code §12926(p), includes but is not limited to pregnancy, childbirth or associated medical condition(s).
- Genetic Information, as defined in California Civil Code §51(2)(e), means:
The Student's genetic tests.
The genetic tests of the Student's family members.
The manifestation of a disease or disorder in the Student's family members.
Any request for, or receipt of genetic services, or participation in clinical research that includes genetic services, by a Student or any Student's family member.
Genetic Information does not include information about any Student's sex or age.
- Harassment means unwelcome conduct engaged in because of a Protected Status that is sufficiently severe, persistent or pervasive that its effect, whether or not intended, could be considered by a reasonable person in the shoes of the Student, and is in fact considered by the Student, as limiting the Student's ability to participate in or benefit from the services, activities or opportunities offered by the University.
Sexual Harassment, as defined in California Education Code §212.5, consists of both non-sexual conduct based on sex or sex-stereotyping and conduct that is sexual in nature, and includes unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature where:
Submission to, or rejection of, the conduct by the Student is explicitly or implicitly used as the basis for any decision affecting the Student's academic status or progress, or access to benefits and services, honors, programs, or activities available at or through the University; or
The conduct is sufficiently severe, persistent or pervasive that its effect, whether or not intended, could be considered by a reasonable person in the shoes of the Student, and is in fact considered by the Student, as limiting the Student's ability to participate in or benefit from the services, activities or opportunities offered by the University.
Sexual Violence is a form of Sexual Harassment. Sexual Violence means physical sexual acts (such as unwelcome sexual touching, sexual assault, sexual battery and rape) perpetrated against a Student without consent or against a Student who is incapable of giving consent due to Age, Disability, or use of drugs or alcohol.
Investigator means the person tasked with investigating a Complaint at Level I. An investigator shall be an MPP Employee, an external consultant, or the Campus DHR Administrator or Title IX Coordinator. The investigator may not be within the administrative control or authority of any Accused CSU employee.
Management Personnel Plan (MPP) Employee, as defined in §42720, Title 5, California Code of Regulations, means an employee (including a retired annuitant) who has been designated as "management" or "supervisory" in accordance with the provisions of the Higher Education Employer-Employee Relations Act.
DHR Administrator means the Campus MPP Employee appointed by the president to administer this executive order and coordinate compliance with the laws prohibiting Discrimination, Harassment and Retaliation against Students. The DHR Administrator may delegate tasks to one or more appropriate designees.
Title IX Coordinator means the Campus MPP Employee appointed by the Campus president to coordinate compliance with Title IX of the Education Amendments of 1972. The Title IX Coordinator may delegate tasks to one or more appropriate designees.
The president may assign the roles of DHR Administrator and Title IX Coordinator to the same person. The names of, and contact information for, the campus DHR Administrator and Title IX Coordinator shall be made readily available to the Campus community in accordance with Article III.
Nationality, as defined in California Education Code §66261.5, includes citizenship, country of origin, and national origin.
Preponderance of the Evidence means the greater weight of the evidence; i.e., that the evidence on one side outweighs, preponderates over, or is more than, the evidence on the other side. The Preponderance of the Evidence is the applicable standard for demonstrating facts in an investigation conducted pursuant to this executive order.
Protected Status means Age, Disability, Gender, Genetic Information, Nationality, Race or Ethnicity, Religion, Sexual Orientation, as well as Veteran Status.
Race or Ethnicity, as defined in California Education Code §66261.7, includes ancestry, color, ethnic group identification, and ethnic background.
Religion, as defined in California Education Code §66262, includes all aspects of religious belief, observance, and practice and includes agnosticism and atheism.
Remedies mean action(s) taken for correcting a violation of this executive order. Interim Remedies are those that may be offered to a complainant prior to the conclusion of a formal investigation in order to immediately stop the alleged wrong doing and reduce or eliminate negative impact upon the complainant. Examples include offering the complainant the option of psychological counseling services, changes to academic or living situations, completing a course and/or courses on-line, academic tutoring, arranging for the re-taking of a class or withdrawal from a class without penalty, and/or any measure as appropriate to stop further alleged discrimination or harassment.
Retaliation means adverse action taken against a Student because he/she has or is believed to have:
Reported or opposed conduct which the Student reasonably and in good faith believes is Discrimination, Harassment or Retaliation; or
Participated in a Discrimination, Harassment or Retaliation investigation/ proceeding.
Sexual Orientation, as defined in California Education Code §66262.7, means heterosexuality, homosexuality, or bisexuality.
Student means an applicant for admission to the CSU, an admitted CSU student, an enrolled CSU student, a CSU extended education student, a CSU student between academic terms, a CSU graduate awaiting a degree, and a CSU student who withdraws from school while a disciplinary matter is pending.
Third Party means an individual or entity other than the CSU, a Student, or a CSU employee. Examples include auxiliary organizations (as defined by §42406, Title 5 of the California Code of Regulations), independent contractors at the Campus, Campus vendors and their employees, and Campus visitors.
Veteran Status means service in the uniformed services.
Working Days are defined as Monday through Friday, excluding all official holidays or Campus closures at the Campus where the Complaint originated.
Article II. Statement of Policy
The CSU, through its chancellor and presidents, is committed to creating an atmosphere in which all Students have the right to participate fully in CSU programs and activities free from unlawful Discrimination, Harassment and Retaliation.
This policy is established in compliance with the California Equity in Higher Education Act (Education Code §66250 et seq.), Title IX of the Education Amendments of 1972, Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act of 1990, and the Age Discrimination Act of 1975, among other applicable state and federal laws. It is CSU policy that no Student shall, on the basis of any Protected Status, be unlawfully excluded from participation in, or be denied the benefits of, any CSU program or activity. Nor shall a Student be otherwise subjected to unlawful Discrimination, Harassment, or Retaliation for exercising any rights under this executive order.
Except in the case of a privilege recognized under California law (examples of which include Evidence Code §§1014 (psychotherapist-patient); 1035.8 (sexual assault counselor-victim); and 1037.5 (domestic violence counselor-victim)), any member of the University community who knows of, or has reason to know of, allegations or acts that violate this policy, shall promptly inform the DHR Administrator.
Employees and Students who violate this policy may be subject to discipline. If employee discipline is appropriate, it shall be administered in a manner consistent with applicable collective bargaining agreements, CSU policies, and legal requirements. Student discipline shall be administered in accordance with §41301 of Title 5, California Code of Regulations and Executive Order 1073, or any superseding executive order, if applicable.
Article III. Implementation and Communication of the Policy
Each Campus president shall designate a DHR Administrator who shall be responsible for the implementation of, and compliance with, this policy.
This executive order shall be made readily available to all Students, CSU employees, and Third Parties, utilizing multiple media of communication, including Student orientations and catalogs, new employee orientations, Campus websites and publications, and the offices of Equity and Diversity, Student Affairs, Student Judicial Affairs, Disabled Student Services, Auxiliary Service Organizations, Academic Affairs, Extended Education and Human Resources.
Article IV. Complaints Regarding Violations of the Policy
This executive order provides Students a procedure to address Discrimination, Harassment and Retaliation by the CSU, a CSU employee, another Student, or a Third Party. Whenever a Campus determines that a Complaint is outside the scope of this executive order, the Campus shall promptly so notify the Student in writing.
- Who May File Complaints
Subject to the exceptions set forth below, any Student may file a complaint of Discrimination, Harassment or Retaliation under this executive order.
Complaints of Student employees whose Discrimination, Harassment or Retaliation complaints arise out of their employment. Such complaints shall be governed by Executive Order 928, or any superseding executive order, if applicable.
Complaints by a Student about his/her academic adjustments and/or accommodations to a University's educational program related to his/her Disability. Such inquiries and complaints shall be directed to the Campus Director, Disabled Student Services (DSS), and shall be governed by the Campus DSS complaint procedure.
Grade Appeals That Allege Discrimination, Harassment or Retaliation
Grade appeals that allege Discrimination, Harassment or Retaliation shall proceed concurrently: (i) under Campus procedures per Executive Order 1037; and (ii) under this executive order. However, the Campus grade appeal procedure shall be placed in abeyance until such time as the Campus and any appeal processes under Article VI and/or Article VII have concluded. The final determination under this executive order regarding whether Discrimination, Harassment or Retaliation occurred will be provided to the Campus grade appeal committee. The committee shall be bound by such determination when considering the grade appeal request under Executive Order 1037.
Grade appeals that do not allege Discrimination, Harassment or Retaliation shall be filed under Campus procedures, per Executive Order 1037, or any superseding executive order, if applicable.
Article V. Informal Resolution - Campus Level
Students who believe they are or may have been victims of Discrimination, Harassment or Retaliation may initiate the Informal Resolution process prior to, or instead of, filing a Complaint. However, it is not appropriate in such cases for a Student to be required to "work out the problem" directly with the Accused; and in no event should any meeting between the Student and the Accused occur without appropriate involvement by the University (e.g., counselor or appropriate administrator). The Student must be notified of the right to end any such informal process at any time.
Upon receipt of a Student's concern(s), the DHR Administrator shall promptly meet with the Student to discuss his or her concern(s) and Interim Remedies, as appropriate. During the pendency of the Informal Resolution process, the timeline to file a Complaint shall be extended for a period of no longer than 20 Working Days. Thus, under Article VI. B, a Complaint may be filed no later than 40 Working Days after the end of the academic term in which the most recent alleged act of Discrimination, Harassment or Retaliation occurred.
If the Student's concern(s) alleges Sexual Discrimination (including but not limited to, Sexual Harassment or Sexual Violence), the Student shall promptly be referred to the Title IX Coordinator. The Title IX Coordinator shall meet with the Student and undertake any and all applicable steps described in Article VI. D. In cases alleging Sexual Violence, the Student shall also be advised to immediately file a Complaint under Article VI. Informal resolution is not appropriate when Sexual Violence is alleged.
The Campus will attempt to resolve the Student's concern(s) quickly and effectively. The DHR Administrator shall meet with the Student, the Accused, and any other person(s) or witness(es) determined by the DHR Administrator to be necessary for a resolution of the matter, to review the allegations and any responses. Informal Resolution may take the form of a negotiated resolution facilitated by the DHR Administrator.
The Student or the DHR Administrator may at any time elect to terminate the process. The DHR Administrator shall promptly notify the Student and the Accused in writing that the Informal Resolution process has terminated, and the effective date thereof.
Both the Student and the Accused shall keep the details of the Informal Resolution process confidential until the process is concluded.
If resolution is reached by these informal means, a record of the resolution shall be memorialized in a writing signed by the Student and maintained in accordance with applicable Campus recordkeeping policies. The matter shall be considered closed and the Student is precluded from filing a Complaint or appeal concerning the same incident, except where the terms of the informal resolution have been violated or have been ineffective in stopping the Discrimination, Harassment, or Retaliation.
Where the Accused is another Student, the DHR Administrator/Title IX Coordinator shall inform the student conduct administrator of the outcome of the Informal Resolution process, including any Remedies afforded to the Student.
If resolution is not reached, the Student shall be informed about how to file a Level I Complaint.
Article VI. Level I - Campus Level
The Campus may determine that circumstances warrant initiating an investigation even if a Complaint has not been filed and independent of the intent or wishes of the Student. In that event, any such investigation shall be subject to Article VI. D through I and Article VIII, A through F only. Such investigation shall not be subject to Article VII.
Filing a Complaint. The Student shall submit a written Complaint to the DHR Administrator. The date of receipt shall be deemed to be the Complaint filing date. The DHR Administrator shall offer reasonable accommodations to Students who are unable to submit a written complaint because of Disability.
Timeline for filing a Complaint. To be timely, a Complaint must be filed no later than 20 Working Days after the end of the academic term (semester/quarter) in which the most recent alleged act of Discrimination, Harassment or Retaliation occurred, unless extended pursuant to Article V above.
Requirements of a Complaint. The Student should complete the attached "CSU Student Discrimination/Harassment/Retaliation Complaint Form" or, in the alternative, the Student shall submit a written signed statement containing the following information:
The Student's full name, address and telephone number(s);
The name of the Accused and job title, position or Student status, if known;
The Protected Status that is the basis for the alleged Discrimination, Harassment, or Retaliation;
A clear, concise statement of the facts that constitute the alleged Discrimination, Harassment, or Retaliation, including pertinent date(s) and sufficient information to identify any individuals who may provide relevant information during the course of any investigation;
A statement verifying that the information provided is true and accurate to the best of the Student's knowledge;
The term and year of the Student's most recent active academic status or the term and year in which he/she sought admission to the University;
The full name, address and telephone number of the Student's advisor, if any;
The specific harm resulting from the alleged Discrimination, Harassment or Retaliation;
The specific remedy sought;
The Student's signature; and
The date on which the Complaint is submitted.
- Intake interview. The DHR Administrator or Title IX Coordinator (in cases alleging Sexual Discrimination, including Sexual Harassment and Sexual Violence) shall meet with the Student as soon as possible, but no later than 10 Working Days after the Complaint was received. The Student shall make him/herself available for this meeting.
The meeting shall serve as the initial intake interview and will: (a) acquaint the Student with the investigation procedure and timelines; (b) inform the Student of his/her rights (including having an advisor); (c) provide the opportunity for the Student to complete and sign a Complaint form, if not already done; and (d) discuss Interim Remedies, as appropriate.
In cases alleging Sexual Violence, the Title IX Coordinator shall inform the Student of the right to file a criminal complaint and that such filing will not significantly delay the Campus investigation; advise the Student of available resources such as the Campus police, student health service center or psychological counseling center; and discuss reasonable and appropriate interim arrangements to avoid contact with the Accused.
Advisor. The Student and the Accused may elect to be accompanied by an advisor to any meeting(s) or interview(s) regarding the Complaint. The advisor may be an attorney. The advisor may not speak on behalf of the Student or Accused; his/her role is limited to observing and consulting with his/her client.
Confidentiality. Information provided to University employees shall be shared with other University employees and law enforcement exclusively on a "need to know" basis. University employees shall endeavor to honor any Complainant's or victim's request for confidentiality; however, the University shall also weigh requests for confidentiality against its duty to provide a safe and nondiscriminatory environment for all members of the campus community. Confidentiality, therefore, cannot be ensured.
Investigation Procedure. The DHR Administrator or Title IX Coordinator shall promptly investigate the Complaint or assign this task to another Investigator on a case-by-case basis. The Investigator shall have relevant experience or shall receive appropriate training regarding such issues as the investigatory process and the laws governing Discrimination, Harassment and Retaliation. If delegated, the responsible DHR Administrator or Title IX Coordinator shall oversee the investigation to ensure that it is conducted in accordance with the standards, procedures and timelines set forth herein.
The Student and the Accused shall have equal opportunities to present relevant witnesses and evidence in connection with the investigation.
The investigation shall be completed no later than 60 Working Days after the intake interview, unless the timeline has been extended pursuant to Article VIII. E or F. The timeline shall not be extended for a period longer than an additional 30 Working Days from the original due date.
The investigation shall not be delayed pending the outcome of any criminal investigation or proceeding. If the Campus delays the fact-finding portion of its investigation while law enforcement is gathering evidence, it shall notify the Complainant of this decision and promptly resume and complete its investigation after law enforcement has finished gathering facts.
Upon inquiry, the Complainant shall be advised of the status of the investigation.
Investigative Report. Within the investigation period stated above, the Investigator shall prepare an investigative report. The report shall include a summary of the allegations, the investigative process, the Preponderance of the Evidence standard, the evidence considered, the findings of fact, and a determination as to whether this executive order was violated. The report shall be promptly provided to the DHR Administrator or Title IX Coordinator (if applicable).
Notice of Investigation Outcome. If the DHR Administrator or Title IX Coordinator performed the investigation, he or she shall notify the Student in writing of the investigation outcome within 10 Working Days of completing the report. Otherwise, within 10 Working Days of receiving the report, the DHR Administrator or Title IX Coordinator shall review the report and notify the Student in writing of the outcome of the investigation. Where a Complaint is made against another Student, the DHR Administrator or Title IX Coordinator shall also notify the Campus student conduct administrator of the investigation outcome.
Notice of the investigation outcome shall include a summary of the allegations, the investigative process, the Preponderance of the Evidence standard, the evidence considered, the findings of fact, a determination as to whether this executive order was violated, and if so, any Remedies to be afforded to the Complainant. If the outcome is that this executive order was not violated, the notice shall inform the Complainant of his/her right to file an appeal under Article VII.
A separate written notice shall be provided to the Accused(s) indicating whether or not the allegations at Level I were substantiated. If the investigation outcome is that this executive order was not violated, the Accused(s) shall also be informed of the Complainant's right to file an appeal.
Article VII. Level II Appeal Review - Office of the Chancellor
Timing for Appeal to CO. Any Complainant who is not satisfied with a Level I determination that this executive order was not violated may file a Level II appeal with the Office of the Chancellor (CO) no later than 10 Working Days after receipt of the written notice of the Level I outcome.
Level II appeals shall be addressed to: CSU Office of the Chancellor, Equal Opportunity and Whistleblower Compliance Unit, Systemwide Human Resources, 401 Golden Shore 2nd Floor, Long Beach, California 90802.
The CO shall promptly notify the Campus DHR Administrator or Title IX Coordinator of any such appeal.
Appeal Request. The appeal shall be in writing and shall: (1) specify the reasons why the determination reached at Level I was erroneous; and (2) identify the specific evidence that supports a finding the alleged Discrimination, Harassment or Retaliation by a Preponderance of the Evidence. The issues and evidence raised on appeal shall be limited to those raised and identified at Level I. The CO will offer reasonable accommodations to Complainants who are unable to submit a written appeal because of Disability.
CO Review. The CO review shall be limited in scope to determining (1) whether the Level I findings of fact are supported by a Preponderance of the Evidence; and (2) whether the findings of fact support the conclusion that this executive order was not violated. The review will not involve a new investigation and will not consider evidence that was in existence but not identified during the Campus investigation. If the CO review determines that evidence that would have affected the Level I determination was not considered, the Complaint shall be returned to the Campus so that the Level I investigation may be completed and the findings revised within a specified timeframe. Under these circumstances, the Student and Accused shall be informed that the investigation has been reopened and the timeline established in Article VII. D shall be extended pursuant to Article VIII. E and F.
CO Response. The CO designee shall respond to the Student no later than 60 Working Days after receipt of the Level II appeal, unless the timeline has been extended pursuant to Article VIII. E or F. The response shall include a summary of the issues raised on appeal, a summary of the evidence considered, the Preponderance of the Evidence standard, a determination of the two issues listed in Section C above, and a final decision. A copy of the CO Response shall be forwarded to the Campus DHR Administrator or Title IX Coordinator, as appropriate, who shall determine whether any additional Remedies shall be afforded, and if so, provide prompt written notice to the Complainant. Where a Complaint is filed against another Student, a copy shall also be provided to the Campus student conduct administrator. A separate notification shall be provided to the Accused(s) indicating whether he/she has been determined to have violated this executive order by a Preponderance of the Evidence.
Closure. The CO Response and decision are final and conclude the CSU Complaint process.
Article VIII. General Provisions for Investigation/Review of Complaints
All investigations and reviews shall be conducted impartially and in good faith.
Students and CSU employees are required to cooperate with the investigation and other processes set forth in this executive order, including but not limited to attending meetings, being forthright and honest during the process, and keeping confidential the existence and details of the investigation/review. If a Complainant and/or Accused refuse to cooperate, the CSU may draw all reasonable inferences and conclusions on the basis of all available evidence and conclude the investigation/review.
A Student shall proceed with a Complaint in good faith. A Student who knowingly and intentionally files a false Complaint or gives false statements will be subject to discipline in accordance with §41301, Title 5, California Code of Regulations. Such disciplinary action shall not be deemed to be Retaliation.
Both the Student and Accused shall have the right to identify witnesses and other evidence for consideration; however, the CSU shall decide what evidence (if any) is relevant and significant to the issues raised.
If the Student, the Accused, a witness, the Investigator, CO designee, or other necessary person involved in the Complaint process is unavailable due to any reason deemed to be legitimate by the Investigator/CO designee, the timelines stated herein will be automatically adjusted for a reasonable time period not to exceed an additional 30 Working Days. The Student and Accused shall receive written notification of any period of extension.
Timelines set forth herein may also be extended by mutual agreement. If the Student does not agree or does not respond to the CSU's request for an extension, the CSU shall respond to the Complaint or appeal within the timelines set forth herein. Any such response shall be interim in nature as it will be based upon the information available at the time. The interim response will note that the investigation or review is continuing until the CSU is satisfied that its duty to respond to the allegation(s) has been appropriately discharged. The interim response shall include a summary of the allegations, a description of the investigative and review process, and shall also provide the Student with an anticipated date of completion.
When submitting a Complaint or issuing a Level I or II decision, personal delivery, overnight delivery service, or certified mail shall be used. If personal delivery is used, a signature acknowledging the calendar date of delivery shall be obtained which will establish the date of filing or response. If certified mail delivery is used, the postmark shall establish the date of filing or response.
The CSU is not obligated under this executive order to investigate a complaint not timely filed under its provisions. Nevertheless, the CSU may in its discretion investigate the underlying allegations of any Discrimination, Harassment or Retaliation complaint if it determines the circumstances warrant investigation. In that event, any such investigation shall be subject to Article VI. D through I and Article VIII. A through F, but shall not be subject to Article VII. The CSU may also in its discretion waive the time limits for filing a Complaint and choose to process the Complaint under the process set forth herein.
Charles B. Reed Chancellor
Dated: April 6, 2012