Sexual and Other Unlawful Harassment

Wilkes University is committed to providing a work environment that is free from all forms of discrimination and conduct that can be considered harassing, coercive, or disruptive, including sexual harassment. Actions, words, jokes, or comments based on an individual's gender, race, color, national origin, age, religion, disability status, sexual orientation or any other legally protected characteristic will not be tolerated. Wilkes provides ongoing sexual harassment training to ensure you the opportunity to work in an environment free of sexual and other unlawful harassment.

Prohibited Conduct Under this Policy

1. Discrimination:

a) It is a violation of this Policy to discriminate in the provision of employment opportunities, benefits or privileges, to create discriminatory work conditions, or to use discriminatory evaluative standards in employment if the basis of that discriminatory treatment is, in whole or in part, the person’s gender, race, color, national origin, age, religion, disability status, sexual orientation, or any other legally protected characteristic.

b) Discrimination of this kind may also be strictly prohibited by a variety of federal, state and local laws, including Title VII of the Civil Rights Act 1964; the Age Discrimination in Employment Act of 1975; the Pennsylvania Human Relations Act; and the Americans With Disabilities Act of 1990. This Policy is intended to comply with the prohibitions stated in these anti-discrimination laws.

c) Discrimination in violation of this Policy will be subject to severe sanctions up to and including termination.

2. Harassment:

Harassment, including sexual harassment, is prohibited by federal and state laws. This Policy prohibits harassment of any kind, and the University will take appropriate action swiftly to address any violations of this policy. The definition of harassment is: verbal or physical conduct designed to threaten, intimidate or coerce. Also, verbal taunting (including racial and ethnic slurs) which impairs his or her ability to perform his or her job.

Examples of harassment are:

(1) Verbal: Comments which are demeaning regarding a person's nationality, origin, race, color, religion, gender, age, body disability, or appearance. Epithets, slurs, negative stereotyping.

(2) Non-verbal: Distribution, display or discussion of any written or graphic material that ridicules, denigrates, insults, belittles, or shows hostility or aversion toward an individual, or group because of gender, race, color, national origin, age, religion, disability status, sexual orientation, or any other legally protected characteristic or other protected status.

3. Sexual Harassment:

Sexual harassment in any form is prohibited under this policy. Sexual harassment is a form of discrimination and is unlawful under Title VII of the Civil Rights Act of 1964. According to the Equal Employment Opportunity Commission (EEOC), sexual harassment is defined as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature... when... submission to or rejection of such conduct is used as the basis for employment decisions... or such conduct has the purpose or effect of... creating an intimidating, hostile, or offensive working environment."

Sexual harassment includes unsolicited and unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, when such conduct:

a) Is made explicitly or implicitly a term or condition of employment, or

b) Is used as a basis for an employment decision, or

c) Unreasonably interferes with an employee's work performance or creates an intimidating, hostile, or otherwise offensive environment.

Sexual harassment does not refer to behavior or occasional compliments of a socially acceptable nature. It refers to behavior that is unwelcome, that is personally offensive, that lowers morale and therefore interferes with work effectiveness. Sexual harassment may take different forms.

Examples of conduct that may constitute sexual harassment are:

(1) Verbal: Sexual innuendoes, suggestive comments, jokes of a sexual nature, sexual propositions, lewd remarks, threats. Requests for any type of sexual favor (this includes repeated, unwelcome requests for dates). Verbal abuse or "kidding" which is oriented towards a prohibitive form of harassment, including that which is sex oriented and considered unwelcome.

(2) Non-verbal: The distribution, display, or discussion of any written or graphic material, including calendars, posters, and cartoons that are sexually suggestive, or shows hostility toward an individual or group because of sex; suggestive or insulting sounds; leering; staring; whistling; obscene gestures; content in letters and notes, facsimiles, e-mail, that is sexual in nature.

(3) Physical: Unwelcome, unwanted physical contact, including but not limited to, touching, tickling, pinching, patting, brushing up against, hugging, cornering, kissing, fondling; forced sexual intercourse or assault.

Normal, courteous, mutually respectful, pleasant, non-coercive interactions between employees, including men and women, that is acceptable to and welcomed by both parties, is not considered to be harassment, including sexual harassment.

There are basically two types of sexual harassment:

1. "Quid pro quo" harassment, where submission or non-submission to harassment is used as the basis for employment decisions.

Employee benefits such as raises, promotions, better working hours, etc., are directly linked to compliance with sexual advances. Therefore, only someone in a supervisory capacity (with the authority to grant such benefits) can engage in quid pro quo harassment. Example: A supervisor promising an employee a raise if she goes on a date with him; A manager telling an employee she will fire him if he does not have sex with her.

2. "Hostile work environment," where the harassment creates an offensive and unpleasant working environment.

Hostile work environment can be created by anyone in the work environment, whether it be supervisors, other employees, or customers. Hostile environment harassment consists of verbiage of a sexual nature, unwelcome sexual materials, or even unwelcome physical contact as a regular part of the work environment. Cartoons or posters of a sexual nature, vulgar or lewd comments or jokes, or unwanted touching or fondling all fall into this category.

What you should do if you are a victim of sexual harassment:

a) If you are the recipient of any unwelcome gesture or remark of a sexual nature, do not remain silent.

b) Make it clear to the harasser that you find such conduct offensive and unwelcome.

c) State clearly that you want the offensive conduct to stop at once.

d) Consider going to the supervisor or manager of the person harassing you. You may do so if you find it uncomfortable to confront the individual engaging in the offensive conduct. The employer cannot solve the problem if he or she is not aware of it.

e) If the conduct does not stop after you speak with the harasser or after you have gone to the harasser's supervisor or manager, you should then notify your supervisor or manager.

f) You may also contact the Human Resources Development Office directly if you feel uncomfortable talking with your supervisor or manager or the supervisor or manager of the person harassing you.

f) Review the complaint procedure set forth in this document. If you decide to file a complaint, please contact the Human Resources Development Office

g) You should keep a written log of all incidents of harassment, noting the date and time, place and persons involved, and any witnesses to the event.

4. Consensual Sexual Relationships:

a) The University strongly discourages romantic or sexual relationships between a management or other supervisory employee and his or her staff (an employee who reports directly or indirectly to that person), because such relationships tend to create compromising conflicts of interest or the appearance of such conflicts. In addition, such a relationship may give rise to the perception by others that there is favoritism or bias in employment decisions affecting the subordinate employee. Moreover, given the uneven balance of power within such relationships, consent by the subordinate employee is suspect and may be viewed by others or, at a later date, by the subordinate employee themselves as having been given as the result of coercion or intimidation. The atmosphere created by such appearances of bias, favoritism, intimidation, or coercion or exploitation undermines the spirit of trust and mutual respect which is essential to a healthy work environment. If there is such a relationship, the parties need to be aware that one or both may be moved to a different department, or other actions may be taken.

b) As in all cases, the burden of proving sexual harassment rests with the accuser. But, when charges of harassment are brought by the subordinate employee during or subsequent to such a relationship, and the supervisor claims that the relationship was consented to by the employee, the burden will be on the supervisor to prove that the relationship was consensual and voluntary.

c) If any Wilkes University employee enters into a consensual relationship which is romantic or sexual in nature with a member of his or her staff (an employee who reports directly or indirectly to him or her), or if one of the parties is in a supervisory capacity in the same department in which the other party works, the parties must notify the manager. Although the parties may feel that what they do during non-working hours is their business and not the business of the office, but because of potential issues regarding "quid pro quo" harassment, the University has made this a mandatory requirement. This requirement does not apply to employees who do not work in the same department, nor to parties who do not supervise or otherwise manage responsibilities over the other.

d) Once the relationship is made known to the manager, they will review the situation with the Human Resources Development Office in light of all the facts (reporting relationship between the parties, effect on co-workers, job titles of the parties, etc.), and will determine whether one or both parties need to be moved to another job or department. If it is determined that one party must be moved, both employees will be asked at the same time as to whether either of them volunteers to move. If neither party volunteers to move, the Human Resources Development office in consultation with the manager of the parties and the Vice-President for the division will recommend which party will be moved, consistent with Subparagraph “e)” below.”

e) The University will make every effort to accommodate both parties continued employment with Wilkes. If it is determined however that no other jobs for the party whose movement is recommended is available or that upon review of the options find that reporting to another supervisor is not good business practice, the parties will need to decide who will tender their resignation.

Retaliation

1) No hardship, no loss or benefit, and no penalty may be imposed on an employee as punishment for:

a) Filing or responding to a bona fide complaint of discrimination or harassment;

b) Appearing as a witness in the investigation of a complaint; or

c) Serving as an investigator.

2) Retaliation or attempted retaliation is a violation of this Policy and anyone who does so will be subject to severe sanctions up to and including termination.

THE COMPLAINT PROCESS

Any person electing to utilize this complaint resolution procedure will be treated courteously, the problem handled swiftly and as confidentially as feasible in light of the need to take appropriate and corrective action, and the registering of a complaint will in no way be used against the employee, nor will it have an adverse impact on the individual's employment status. While reporting such incidents would be a difficult personal experience, allowing harassment activities to continue will most certainly lead to less desirable outcomes. For that reason, employees are strongly urged to utilize this procedure. However, filing groundless and malicious complaints is an abuse of this policy and is prohibited.

A. RESPONSIBILITIES

1. All Wilkes University employees must share the responsibility of understanding and preventing discrimination and harassment. But, ultimately, no satisfactory investigation or resolution of complaints can occur without the initiative and continued cooperation of the person who has been harassed or discriminated against. Individuals who believe they have been discriminated against or harassed have the primary obligation of informing their supervisor or the Human Resources Development Office of the act of discrimination, harassment or retaliation, recounting specific actions or occurrences whenever possible.

2. Managers and supervisors have the special responsibility as agents of the University to act promptly to eliminate any discrimination or harassment which exist in their areas of responsibilities, If a manager or supervisor knows that discrimination, harassment or retaliation is occurring, or receives information that discrimination, harassment or retaliation might be occurring, he or she must take immediate action to address the problem. Such action should include, but is not limited to, speaking directly with the person who believes they have been discriminated against or harassed, developing a specific account of the actions, omissions or occurrences that are alleged to be discriminatory, consultation with the Human Resources Development office, and corrective or disciplinary action.

a) If the alleged discrimination, harassment or retaliation is not within their area of responsibility or oversight, managers and supervisors must notify the Human Resources Development Office or other appropriate management employee, who must then take prompt steps to address the allegation.

b) Any Wilkes University employee who is found to have engaged in conduct prohibited under this Policy is subject to disciplinary action, including removal from that position for cause.

3. The Vice-President of Human Resources Development has the primary responsibility of implementing this Policy. In particular, the Human Resources Development office will respond to inquiries and complaints from management and employees regarding discrimination, sexual harassment, other harassment, or retaliation; maintain records of these inquiries and complaints as well as their resolution, and keep the parties that need to know advised of them. The Human Resources Development Office will also provide information and education to the employees and management on recognizing, understanding, and combating unlawful discrimination and harassment.

B. CONFIDENTIALITY

1. Before filing a complaint:

a) The Human Resources Development office wishes to create a safe environment in which individuals are not afraid to discuss concerns and complaints, or to seek general information about discrimination, harassment, and retaliation. The office recognizes that individuals may be concerned about the confidentiality of information they share, and will strive to preserve confidentiality to the fullest extent possible.

b) The Employee Assistance Program (Policy # 324) provides confidential counseling services to Wilkes University employees. Persons wishing to discuss confidentially an incident of possible discrimination, harassment or retaliation, or persons seeking information and advice without committing to future action, are encouraged to contact the EAP. The role of the EAP in such cases will be limited to personal counseling and treatment of the person who is then a client of the EAP.

c) Discussions for the purpose of obtaining general information or advice from responsible administrators or managers (such as the Human Resources Manager or the Vice-President of Human Resources Development) may remain confidential. No action will be taken when individuals wish only to make an inquiry, so long as they do not disclose any identifying information about themselves or the person accused (e.g., names, department, position).

d) However, the anonymity described cannot always be maintained if the individual wishes to have the University take some corrective or disciplinary action in a particular case. Moreover, the University may be legally obligated to take action once informed that discrimination, harassment or retaliation has occurred or may be occurring. Confidentiality cannot be guaranteed in such a case.

2. During the complaint process:

a) Once an individual discloses identifying information, and such information is sufficiently complete and specific to state a claim of discrimination, harassment or retaliation, he or she will be considered to have filed a complaint with the University.

b) The Human Resources Development office will take prompt responsive action upon receipt of a complaint unless the complainant expressly requests that no action be taken and the office determines in the exercise of its sole discretion (based upon legal advice) that federal, state or local laws do not mandate action.

c) While the confidentiality of the information received, the privacy of the individuals involved, and the wishes of the complaining person regarding action by the office cannot be guaranteed in every instance, they will be protected to as great a degree as is legally possible. The expressed wishes of the complaining person for confidentiality will be considered in the context of the University’s legal obligation to act upon the charge and the right of the charged party to obtain information. In most cases, however, confidentiality will be strictly maintained by the University and those involved in the investigation.

d) During the investigative process, any notes or documents written by or received by the person(s) conducting the investigation will be kept confidential to the extent that they do not violate any existing state or federal law.

C. COMPLAINT PROCEDURE

The following complaint procedure will be followed in order to address a complaint regarding, harassment, discrimination, or retaliation.

1) A person who feels harassed, discriminated or retaliated against may initiate the complaint process by filing a written and signed complaint with the Human Resources Development office. If a supervisor or manager becomes aware that harassment or discrimination is occurring, either from personal observation or as a result of an employee coming forward, the supervisor or manager should immediately report it to the Human Resources Development office.

2) Upon receiving the complaint, or being advised by a supervisor or manager that violation of this policy may be occurring, the Vice-President of Human Resources Development will notify the division head responsible for the area (this may be the President, Provost, or Vice-President), and review the complaint with the University’s Legal Counsel and the head of the department (Director, Dean, Chairperson) in which the alleged harassment or discrimination is occurring.

3) Within five (5) working days of receiving the complaint, the Human Resources Development office will:

a) Provide a copy of the complaint to the person(s) charged (hereafter referred to as "respondent(s);" and

b) Initiate the investigation to determine whether there is a reasonable basis for believing that the alleged violation of this Policy occurred.

4) During the investigation, the Human Resources Manager or Vice-President of Human Resources Development, together with other management employees, will interview the complainant, the respondent, and any witnesses, to determine whether the conduct occurred.

5) Within fifteen (15) business days of the complaint being filed (or the matter being referred to the Human Resources Development office), the Human Resources Manager or Vice-President of Human Resources Development will conclude the investigation and submit a report of his or her findings to the company, with copies to the appropriate department head, division head, complainant, and respondent.

6) If it is determined that harassment or discrimination in violation of Wilkes University’s policy has occurred, the Vice-President of Human Resources Development will recommend that appropriate disciplinary action to be taken by the University. The appropriate action will depend on the following factors: (i) The severity, frequency and pervasiveness of the conduct; (ii) Prior complaints made by the complainant; (iii) Prior complaints made against the respondent; (iv) The quality of the evidence (first hand knowledge, credible corroboration etc.).

7) If the investigation is inconclusive or it is determined that there has been no harassment or discrimination in violation of this Policy, but some potentially problematic conduct is revealed, preventive action may be taken.

8) Within five (5) days after the investigation is concluded, the Human Resources Manager or Vice-President of Human Resources Development will meet with the complainant and the respondent separately, in order to notify them in person of the findings of the investigation and to inform them of the action being recommended.

9) The complainant and the respondent may submit statements to the Vice-President of Human Resources Development challenging the factual basis of the findings. Any such statement must be submitted no later than five (5) working days after the meeting with the representative from the Human Resources Development office in which the findings of the investigation are discussed.

10) Within ten (10) days from the date the Vice-President of Human Resources Development meets with the complainant and respondent, the President will review the investigative report and any statements submitted by the complainant or respondent, discuss results of the investigation with the Human Resources Development representatives and other management staff as may be appropriate, and decide what action, if any, will be taken. The Vice-President of Human Resources Development will report the University’s decision to the complainant, the respondent, department head and division head in which the complainant and the respondent work. The University’s decision will be in writing and will include findings of fact and a statement for or against disciplinary action. If disciplinary action is to be taken, the sanction will be stated.

D. ALTERNATIVE LEGAL REMEDIES

Nothing in this policy shall prevent the complainant or the respondent from pursuing formal legal remedies or resolution through state or federal agencies or the courts.

Policy No.  703  Effective Date:  2/1/2004  Revision Date:  11/1/2004