Responding to Reports of Discrimination and Related Retaliation

I. Resources and Rights for Complainants and Respondents

1. Options for Complainants

   There are a number of University resources and processes that may be available to complainants, including:

   1. Confidential personal support resources for complainants, whether or not an investigation or informal problem-solving process is initiated, as identified in the “Confidential Support Resources for Complainants and Respondents” section of the Administrative Policy: Discrimination.
   2. Supportive measures, as described in Section I.B, whether or not an investigation or informal problem-solving process is initiated.
   3. Informal problem-solving process. A complainant may request an informal problem-solving process by contacting the campus Equal Opportunity office.
   4. Investigation. A complainant may request an investigation process by contacting the campus Equal Opportunity office. 
   5. Consultations with the campus Equal Opportunity office. A complainant may contact the campus Equal Opportunity office to learn more about these options, with or without sharing information about their experience of prohibited conduct or requesting an investigation or informal problem-solving process.
   6. Anonymous reporting through the University’s UReport reporting system. Reports of prohibited conduct that are submitted through UReport are forwarded to the campus Equal Opportunity office. The campus Equal Opportunity office will address anonymous reports to the extent possible given the information provided in the report.

2. Supportive Measures

   The parties may request supportive measures designed to restore or preserve equal access to the University’s programs and activities, protect the safety of all parties or the environment, and/or deter prohibited conduct. Parties who need supportive measures should request them directly from the departments or individuals with the ability to provide them, such as the appropriate faculty member, supervisor or human resources representative. The departments or individuals with the ability to provide the requested supportive measures will determine whether supportive measures are reasonably available and appropriate depending on the circumstances of each case. The campus Equal Opportunity office is also available to meet with University members to address questions or concerns about the provision of supportive measures.

3. Privacy and Confidentiality

   The University is committed to protecting the privacy of all individuals involved in an investigation or informal problem-solving process under this policy to the greatest extent possible. Still, as part of these processes, the University will generally need to share the identities of the parties and/or witnesses – as well as information provided by the parties and/or witnesses – with other participants in the process. This information also may be included in an investigation report or other document relating to the case, which may be provided to the parties, the University Authority and others as appropriate. 

   When conducting investigations or informal problem-solving processes, the University aims to protect the integrity of the process, protect the privacy of parties and witnesses, and protect parties and witnesses from harassment, intimidation, or retaliation. To further these goals, parties and witnesses are encouraged to limit their sharing of information about a matter (including the allegations, the identities of the parties and witnesses, and the questions asked in interviews), particularly while the process is ongoing. Parties and witnesses are also cautioned not to discuss the allegations in a manner that constitutes retaliation (as defined in the Definitions section of the Administrative Policy: Discrimination). 

   In some circumstances, the University may find it necessary to require that parties and witnesses keep confidential all information related to an investigation or informal problem-solving process to prevent harm to individuals or the work or academic environment. For example, University members may be required to maintain confidentiality to protect University members from harassment, intimidation, and retaliation; to keep evidence from being destroyed; to ensure that testimony is not fabricated or contaminated by others; to prevent a cover-up; or to prevent serious disruption of the work environment. In such cases, the relevant parties and witnesses will be notified.

II. University Responses to Possible Prohibited Conduct in Cases with Student Respondents

University responses to possible prohibited conduct in cases with student respondents (including student workers) will be conducted in accordance with Board of Regents Policy: Student Conduct Code.

The campus office that responds to concerns under the Student Conduct Code (or its designee) will respond to prohibited discrimination concerns involving student respondents (except as to student workers as described below).

1. Cases with Student Worker Respondents

   In cases with student respondents who were acting in an employment capacity when the alleged prohibited conduct occurred, the campus Equal Opportunity office that responds to alleged prohibited conduct by employees will conduct investigations or informal problem-solving processes where appropriate. 

   After an investigation by the campus Equal Opportunity office, the University will apply the post-investigatory process that applies to student respondents in accordance with Board of Regents Policy: Student Conduct Code and its related procedures. This process may result in disciplinary action under the Student Conduct Code. In cases where a student worker is found to have violated Administrative Policy: Discrimination, the University Authority for the student worker respondent may take employment-based disciplinary action, and/or other responsive action, as appropriate. As a result, a student worker respondent may be subject to responsive action as an employee by their employer and as a student as a result of the Student Conduct Code.

III. University Responses to Possible Prohibited Conduct in Cases with Employee or Third Party Respondents

1. Overview of University Responses in Cases with Employee or Third Party Respondents

   1. Information Provided to Complainants

      When a campus Equal Opportunity office learns about possible prohibited conduct, it will contact the complainant where appropriate to provide information about available confidential personal support resources, the opportunity to request supportive measures, and the process for initiating an investigation or informal problem-solving process.

   2. Campus Equal Opportunity Office Determination About Further Responsive Action

      Upon learning about possible prohibited conduct, the campus Equal Opportunity office will take one of the following three actions. In some cases, the Equal Opportunity Office will first conduct an initial inquiry to determine which of these three actions will most effectively address the possible prohibited conduct.

      1. Initiate an informal problem-solving process.

         The campus Equal Opportunity office may initiate an informal problem-solving process to address the alleged prohibited conduct and to prevent prohibited conduct. An informal problem-solving process may be appropriate in cases: 1) with an anonymous complainant; 2) where the alleged conduct does not rise to the level of prohibited conduct; 3) where the complainant does not want to initiate an investigation and an informal problem-solving process may effectively address the alleged conduct; 4) where the alleged conduct is likely covered by academic freedom or free speech protections; or 5) where an informal problem-solving process is otherwise deemed to be the most appropriate and effective response. 

      2. Initiate an investigation.

         The campus Equal Opportunity office may initiate an investigation when the alleged conduct, if substantiated, would constitute prohibited conduct. In particular, the Equal Opportunity office will initiate an investigation where it is necessary to comply with legal anti-discrimination requirements, or where an investigation is otherwise deemed to be the most appropriate and effective response.

      3. Take no further action.

         In certain cases, including, for example, where a complainant does not want an investigation or informal problem-solving process, or when the campus Equal Opportunity office does not have sufficient information to effectively initiate such a process, the campus Equal Opportunity office may decide not to take any action.

2. Informal Problem-Solving Process in Cases with Employee or Third Party Respondents

   The campus Equal Opportunity office may initiate an informal problem-solving process to address a report of prohibited conduct. In an informal problem-solving process, the campus Equal Opportunity office may provide resources to help address the concerns raised and make recommendations for responsive action. For example, informal problem-solving processes may include:

   • gathering additional information about the alleged prohibited conduct to determine how to most effectively respond to the alleged prohibited conduct or to provide relevant information to the individuals involved;
   • notifying a respondent about the alleged conduct and about any reported impact on a complainant or community;
   • providing education or coaching to a respondent or complainant;
   • providing recommendations that are aimed at preventing further concerns from arising to an appropriate individual who oversees a respondent or complainant;
   • recommending shuttle mediation, facilitated dialogues, or restorative conferences; and/or
   • recommending a plan to monitor for future misconduct.

   Even if the campus Equal Opportunity office originally initiates an informal problem-solving process, it may decide upon gathering additional information about the alleged prohibited conduct that it is appropriate to initiate an investigation.

3. Investigation Process in Cases with Employee or Third Party Respondents

   The University’s procedures for investigating reported instances of prohibited conduct are based upon principles of fairness and respect for complainants and respondents. 

   1. Who Can Conduct Prohibited Conduct Investigations

      Investigations into reports of prohibited conduct by employee or third party respondents under this policy will be conducted by the campus Equal Opportunity office. 

      In some circumstances, reported conduct may constitute prohibited conduct in violation of Administrative Policy: Discrimination as well as misconduct in violation of other University policies or rules. In these situations, supervisors or human resources representatives may investigate the conduct to determine whether it violated workplace rules or expectations that are not covered by Administrative Policy: Discrimination.

   2. Scope and Elements of an Investigation

      The nature and scope of an investigation will be determined based on the report of prohibited conduct and any additional information gathered during the investigation, and will typically include the following elements:

      • One or more interviews of a complainant, where a complainant will have the opportunity to describe the conduct giving rise to the report, provide evidence, and identify witnesses;
      • Written notice to the parties of the alleged prohibited conduct investigation;
      • One or more interviews of a respondent, where a respondent will have the opportunity to respond to the allegations, provide evidence, and identify witnesses;
      • Gathering of other evidence, such as through witness interviews; and
      • Review and analysis of the evidence.

      When a complainant requests that their identity be kept confidential or that the University refrain from conducting an investigation, the campus Equal Opportunity office will make an individualized determination of whether it is appropriate to keep an individual’s identity confidential or to conduct an investigation. The campus Equal Opportunity office will consider the complainant’s wishes, the University’s responsibility to provide a safe and non-discriminatory campus environment, and the University’s ability to appropriately respond to alleged prohibited conduct if it were to comply with the complainant’s request. 

   3. Review of Written Summary of Relevant Evidence

      The parties will be afforded a period of five business days in which they can review and respond in writing to a written summary of the relevant evidence that has been gathered by the campus Equal Opportunity office.

   4. Standard of Proof

      The University applies the preponderance of the evidence standard when determining whether this policy has been violated. “Preponderance of the evidence” means that it is more likely than not that a policy violation has occurred.

   5. Written Determination

      The campus Equal Opportunity office will provide the parties with a final written report that contains a decision on responsibility (Written Determination).

      Except, in cases involving student workers, the campus Equal Opportunity office will send a written report (and not a Written Determination) that contains an initial decision on responsibility to the campus office that investigates concerns under the Student Conduct Code, which will in turn provide the written report to the parties. The post-investigatory processes set forth under the Student Conduct Code and its associated procedures will then apply.

4. Post-Investigatory Processes in Cases with Employee or Third Party Respondents (Not Including Student Worker Respondents)

   1. Opportunity to Appeal the Decision on Responsibility

      Any party may initiate an appeal of the decision on responsibility by filing a notice that the party intends to appeal the decision on responsibility within 10 calendar days of receipt of the Written Determination. The notice must be in writing and submitted to the Equal Opportunity & Title IX Office at [email protected]. Appeals that are not timely noticed will be denied.

      The appealing party (the appellant) has 10 calendar days from the date they filed their notice of appeal to provide to the Equal Opportunity & Title IX Office a letter that describes the basis for the appeal and any information in support of the appeal. The Equal Opportunity & Title IX Office will forward this letter from the appellant to the other party (the appellee), who then has 10 calendar days to submit a written response. 

      The Equal Opportunity & Title IX Office will then: 1) forward to the appellant any timely written response from the appellee; 2) forward the parties any written response to the appeal from the campus Equal Opportunity office; and 3) send to the Appellate Officer: the Written Determination, the notice of appeal from the appellant, any timely written submission in support of the appeal from the appellant, any timely written submission in response from the appellee, and any written response to the appeal from the campus Equal Opportunity office. 

      The responsible Appellate Officer is identified in Appendix: University Authorities and Appellate Officers.

      The Appellate Officer has discretion to ask for additional information from a party or to request information from the campus Equal Opportunity office. 

      Appeals are not intended to allow for a second review of the same information provided during the investigation, and the Appellate Officer will not substitute their judgment for that of the campus Equal Opportunity office. Appeals are limited to the grounds set forth below.

      • Procedural irregularity that affected the decision on responsibility.
      • New evidence that was not reasonably available at the time of the decision on responsibility that could have affected the decision.
      • A decision on responsibility that is not based on substantial information. Substantial information means relevant information that a reasonable person might accept as adequate to support a conclusion.
      • The campus Equal Opportunity office had a conflict of interest or a bias against a complainant or respondent that affected the decision on responsibility.

      The Appellate Officer will review the parties’ written submissions, the campus Equal Opportunity office’s written submissions, if any, and the Written Determination and, if necessary, all or part of the campus Equal Opportunity office casefile. The Appellate Officer will then issue a written decision that 1) affirms, in whole or in part, the decision on responsibility, 2) overturns, in whole or in part, the decision on responsibility, or 3) remands the matter to the investigator to remedy procedural errors or consider new evidence. The decision of the Appellate Officer is the final University decision with respect to responsibility. The Appellate Officer will strive to issue a decision within 30 calendar days of receipt of the appellee’s written response, if any, to the appealing party’s letter. The Appellate Officer will send their written decision to the parties and the campus Equal Opportunity Office. 

   2. Decisions on Discipline and Other Responsive Actions

      After an appellate decision has been issued (that does not remand the matter), or after the time for appeal has run with no party providing timely notice of appeal, the campus Equal Opportunity office will send the Written Determination, the appellate decision (if any), and Equal Opportunity & Title IX Office’s recommendations for responsive action (if any) to the responsible University Authority and Human Resources representative. The responsible University Authority is identified in Appendix: University Authorities and Appellate Officers.

      The responsible University Authority will decide whether responsive actions will be implemented, including disciplinary action in cases where a finding of responsibility has been made. However, in cases that do not result in a finding of responsibility, the campus Equal Opportunity office may in its discretion determine that a supervisor or other appropriate individual may serve as the University Authority, instead of the individual designated to serve as University Authority in the Appendix.

      In cases where the University Authority makes a decision on discipline that differs meaningfully from the discipline recommended by the campus Equal Opportunity office, the Provost or Chancellor (in cases with faculty respondents) or Vice President for Human Resources or Chancellor (in cases with staff and third-party respondents), or their designee, must approve the decision on discipline before it is implemented.

      The University Authority will provide a respondent with a written description of the responsive actions that the University Authority has decided to implement that directly impact the respondent. Similarly, the University Authority will notify a complainant of any responsive actions that directly impact the complainant. The University Authority will provide the campus Equal Opportunity office with a written description of all of the responsive actions that the University Authority has decided to implement. The University Authority will monitor compliance with any responsive actions and address any compliance failures, while following applicable state and federal privacy laws.

      In cases where the respondent is a labor-represented employee, the University Authority will additionally follow any requirements set forth in the collective bargaining agreement before imposing discipline.

   3. Review of Discipline

      A respondent may seek review of any discipline imposed as a result of a finding of responsibility under this policy based on their specific job classification. To learn more about the available mechanisms for seeking review of disciplinary action:

      • Labor-represented employees should contact their union representative and/or refer to the applicable collective bargaining agreement.

      • Faculty members should refer to Chapter 14 of Board of Regents Policy: Faculty Tenure (PDF). Faculty members may contact the Office of the Executive Vice President and Provost for more information about processes under this policy:

        Office of the Executive Vice President and Provost 
        234 Morrill Hall 
        100 Church Street SE 
        Minneapolis, MN 55455 
        [email protected] 
        612-625-0051 
        http://provost.umn.edu

      • Faculty members who are not represented by a union may also refer to the University’s conflict resolution process for employees. These faculty members may contact the Office for Conflict Resolution for more information:

        Office for Conflict Resolution 
        662 Heller Hall (West Bank) 
        271 19^th Avenue South 
        Minneapolis, MN 55455 
        612-624-1030 
        http://ocr.umn.edu/ 
        [email protected]

      • All other employees, including Civil Service and Professional and Administrative employees should refer to the University’s conflict resolution process for employees and/or contact the Office for Conflict Resolution (see bullet above for contact information).

IV. Responsive Action

Responsive action is intended to eliminate prohibited conduct, prevent its recurrence, and promote accountability while supporting the University’s educational mission and legal obligations. Responsive action may include disciplinary, rehabilitative (including educational), restorative, and monitoring components.

1. For Student Respondents

   Possible disciplinary sanctions in cases with student respondents are detailed in Board of Regents Policy: Student Conduct Code.

2. For Employee Respondents

   Possible responsive actions (which may include disciplinary, rehabilitative, restorative and monitoring actions) in cases with employee respondents (including student workers) may include one or a combination of the following:

   • coaching or education;
   • mentoring;
   • changes to work duties or locations;
   • monitoring to ensure that prohibited conduct is not occurring;
   • probation;
   • transfer of position;
   • removal of administrative appointment;
   • salary reduction;
   • demotion;
   • oral or written reprimand;
   • suspension; and
   • termination of employment.

3. For Third-Party Respondents

   Possible disciplinary sanctions or other responsive actions in cases with third-party respondents may include restrictions on a third-party respondent’s: 1) participation in University programs or activities; 2) attendance at University events; or 3) ability to enter campus spaces, among other things. 

4. Considerations in Determining Responsive Action To Address A Decision of Responsibility

   The following factors, among others, may be considered in determining the appropriate disciplinary sanctions or other responsive actions to address a decision of responsibility for prohibited conduct:

   • the severity, persistence, or pervasiveness of the prohibited conduct;
   • the nature of the prohibited conduct;
   • whether the prohibited conduct threatened physical safety;
   • any incidents of prior misconduct by a respondent, including the respondent’s disciplinary history, at the University or elsewhere;
   • the impact of the prohibited conduct on the complainant and other members of the University community;
   • an assessment of a respondent’s potential for development, including whether the respondent has accepted responsibility for the prohibited conduct;
   • the maintenance of a safe, nondiscriminatory, and respectful work and learning environment; and
   • any other mitigating, aggravating, or compelling factors.

   Responsive action that is deemed disciplinary in nature by the rules governing the respondent’s employee classification will only be applied under this policy in cases where the respondent was found to have engaged in prohibited conduct.

V. Party, Witness, and Advisor Participation in University Response Processes

1. Party and Witness Participation

   1. Employee, student worker, or third-party respondent cases

      Complainants are not required to participate in investigation or informal problem-solving processes. However, the University may be limited in its ability to respond to possible prohibited conduct without a complainant’s participation. When requested, respondents are required to meet with the campus Equal Opportunity office without undue delay to, at a minimum, hear the detailed allegations asserted against them. Respondents are not required to respond to these allegations, and the fact of their failure to provide any response will not be used to support a finding of responsibility. However, where a complainant or respondent refuses to provide relevant information in an investigation, the campus Equal Opportunity office will make a finding based only on the information available. 

      All other University members are required to participate in prohibited conduct investigations or informal problem-solving processes to ensure that the most complete information is available to the University. The campus Equal Opportunity office may excuse University members from this requirement in certain circumstances, such as where the University member is unlikely to provide significant relevant information or where participation would result in an unreasonable burden for that University member. 

   2. Student Respondent Cases

      In prohibited conduct cases involving student respondents (non-student workers), the parties are required to participate where required by Board of Regents Policy: Student Conduct Code and its associated procedures on each campus. 

2. Advisor Participation

   1. Employee, student worker, or third-party respondent cases

      In prohibited conduct cases involving an employee or third-party respondent, the parties may be accompanied to meetings in an investigation, post-investigation, or informal problem-solving process by one advisor. The advisor may be an attorney, union representative, or other individual. To protect the integrity of these processes, individuals who are witnesses with information about facts material to the underlying case, or whose participation as advisors could create a conflict of interest, may not serve as advisors. Other individuals may be permitted to attend these meetings for good reason, such as to accommodate a disability, at the discretion of the University official conducting the meeting.

      For more information about the responsibilities of advisors in cases with employee, student worker, or third-party respondents, please see Appendix: Roles and Responsibilities of Advisors.

   2. Student respondent cases

      In prohibited conduct cases involving student respondents (non-student workers), the parties may be accompanied to meetings in an investigation, post-investigation, or informal problem-solving process by advisors in accordance with Board of Regents Policy: Student Conduct Code and its associated procedures on each campus. 

3. Duty to Participate in Good Faith

   Individuals who knowingly or intentionally file a false report or provide false or misleading information in connection with an investigation or informal problem-solving process may be subject to disciplinary action up to and including termination of employment or expulsion. Disciplinary action is not warranted where an individual makes a prohibited conduct report or participates in a prohibited conduct investigation or informal problem-solving process in good faith, even if the report or information is ultimately not substantiated. An individual provides information in good faith when that individual reasonably believes that the information they have provided is accurate.

VI. Accommodations in University Response Processes

Any individual who needs reasonable accommodations for a disability to participate in any of the prohibited conduct processes set forth in this policy should request accommodations through the campus disability services office and follow the process established by that office. Any participant who needs reasonable accommodations for religion or for reasons related to pregnancy, childbirth, lactation, and related medical conditions, should notify the campus Equal Opportunity office or the campus office that responds to concerns under the Student Conduct Code about the need for accommodations. In addition, any participant who may need a language interpreter should notify the campus Equal Opportunity office or the campus office that responds to concerns under the Student Conduct Code as soon as possible.

VII. Recordkeeping

The University will maintain records related to actions taken under this policy as required by Administrative Policy: Managing University Records and Information. The University will compile and maintain publicly available records, including Clery Act reporting and disclosures, without the inclusion of personally identifying information about a complainant. The University will provide complainants and respondents with access to their records related to any of the prohibited conduct processes set forth in Administrative Policy: Discrimination in accordance with the law.