The Office of Equal Opportunity & Affirmative Action (OEO/AA)
The OEO/AA is a neutral, impartial and independent fact-finding office that internally investigates discrimination and retaliation complaints filed against University-affiliated individuals including students, staff, faculty, and vendors. Our office is responsible for the University’s nondiscrimination policies and is the department charged with the responsibility of investigating and responding to complaints of discrimination including sexual misconduct. Although we conduct investigations, our office does not impose sanctions for violations of the University’s nondiscrimination policies. Findings of discrimination, harassment, and sexual misconduct are referred to the appropriate University administrator which may include the supervisor, Chair, Dean and/or cognizant Vice President with responsibility over the Respondent. If the Respondent is a student, the Vice President for Student Affairs and the Office of the Dean of Students will also be notified.
The University is committed to providing and fostering an environment that is safe and free from discrimination and harassment. University policy prohibits discrimination based upon race, color, sex, national origin, ethnicity, age, disability, religion, sexual orientation, gender identity, gender expression, genetic information, and protected veteran’s status.
Retaliation is strictly prohibited by University policy and federal law. This means that individuals are prohibited from harassing or punishing the Complainant or any witnesses for initiating or participating in the OEO/AA process. Retaliation is conduct that would discourage a person from filing a complaint, or a witness from cooperating with an investigation and may include, but is not limited to: adverse employment or academic actions (without legitimate business reasons), confrontation or other communication that could reasonably be perceived as intimidation, harassment, or urging others to retaliate against the Complainant or other person who have asserted their rights under the university’s nondiscrimination policies. Retaliation can occur even if the underlying complaint of discrimination is found to be without merit.
A cause finding is the written decision by the OEO/AA determining that a person had violated the university’s nondiscrimination policy, Policy 1-012.
A person filing the complaint is called the “Complainant.” In some cases, the “Complainant” may be a University official who has filed a complaint on behalf of another individual or in the interests of the University. This may occur in order for the OEO/AA to conduct an investigation if the individual who directly experienced the alleged discriminatory practices does not wish to file the complaint themselves.
Consultants are investigators whose role is to facilitate alternative resolution, investigate complaints and assist the parties in understanding the OEO process. They are neutral and do not advise or advocate for either the Complainant or Respondent.
Aggravating and mitigating factors are factors that are used in determining the appropriate level of discipline when a “cause” finding is issued. Examples of aggravating factors are whether there are prior warnings for similar misconduct, is this a repeat violation, is there evidence the violation was premeditated, etc. Examples of mitigating factors are whether the Respondent has accepted responsibility, are there other circumstances that should be considered?
When evaluating evidence in an OEO/AA case, the legal standard used is the “preponderance of the evidence” meaning “more likely than not.” Another way to explain this is that more than 50% of the evidence supports the finding. In comparison, in order to convict someone for a crime, the legal standard used is “beyond a reasonable doubt.”
Either the OEO/AA or the Victim Advocates will provide information to the Complainant about the University’s internal administrative complaint process and review with them their respective rights and responsibilities. The Complainant will also receive information about available community and campus resources and services, their right to file a report with law enforcement and the university’s prohibition against retaliation. The Complainant will have an opportunity to ask questions and seek additional information.
Upon receipt of any report, the OEO/AA will make an immediate assessment of risk of harm to the parties or to the University community and will take steps to address any risks.
The Complainant and the Respondent may each be accompanied at any meetings by an adviser of their choice, who may be an attorney, though this is not a requirement. During the investigation, the adviser may only advise the Complainant or Respondent and may not actively participate in the investigative process. Please let the Consultant know if there will be an adviser assisting you.
A. Support Person. The Complainant and Respondent are each allowed to choose a Support Person. The Support person cannot be a witness or provide evidence in the case. Their role is to assist the Complainant or Respondent by providing support and reassurance. The Complainant and Respondent may each choose to be assisted by a Support Person of their choice, at their own initiation and expense. A Support Person shall not be an active participant and the parties must speak for themselves.
B. Adviser. A party may choose to be assisted by an adviser of their choice, including an attorney, at their own initiation and expense. The adviser is a non-participant who is present to provide advice and consultation to a party. An adviser cannot be a witness or provide evidence in a case. An adviser shall not be an active participant. The parties must speak for themselves. An adviser may not delay, or otherwise interfere with, the University’s process.
Good faith efforts will be made to complete the process by balancing principles of thoroughness and fundamental fairness with the importance of resolving complaints.
Consistent with the goal of maximizing educational opportunities, remedying the effects of prohibited conduct and promoting campus safety while minimizing the possible disruptive nature of the process, the OEO/AA strives to complete a formal investigation within sixty (60) business days of receipt of the complaint. The OEO/AA may extend the general time frames for the completion of required actions. If such an extension occurs, the parties will be notified in writing, and given the reason(s) for the extension, by the OEO/AA.
In general, the investigation phase may last approximately six to eight weeks and the hearing phase may last approximately another four to five weeks.
Alternative resolution is a method of resolving the matter through a mutually agreeable solution without proceeding to an investigation and adjudication. If the parties agree to resolve the situation through alternative resolution, an investigation may not be needed. Both the party bringing the complaint as well as the person responding to the complaint must agree to the resolution. In cases of sexual violence, alternative resolution is not an appropriate method of resolving an issue.
Examples of Alternative Resolution: Having OEO conduct one-on-one training for the Respondent which includes addressing the behavior and explaining expectations for conduct; voluntarily attending a healthy-relationship class.
All complaints of discrimination and retaliation are treated seriously. However, there may be some instances in which OEO/AA will not conduct a formal investigation. Generally, these are circumstances where the OEO/AA does not have any jurisdiction. In other words, the OEO/AA may not have the authority to make a decision about whether or not the individual has violated the University’s nondiscrimination policies.
- Failure to State a Claim: if the initial complaint does not state a claim of a violation of the University’s nondiscrimination policy, the complaint may be dismissed.
- Timeliness: Generally, complaints must be filed within 120 days of the last discriminatory conduct. There may be extenuating circumstances, particularly in cases involving sexual misconduct, which would allow the OEO/AA Director to waive the timeliness requirement. If the complaint is submitted beyond the 120-day requirement, it is helpful to explain the reasons for the delay and whether or not the effects of the discrimination still exist, such as whether the individual engaging in the conduct is still a member of the campus community and whether your academic or employment environment is still affected.
If a complaint is filed and the complaint is dismissed for one of the above stated reasons or other reasons, the individual filing the complaint will receive a written notice that the complaint is being dismissed. The notice will explain the reason that the complaint is being dismissed. If the Complainant disagrees with the reason for the dismissal, the Complainant may appeal the dismissal to the Chief Human Resource Officer.
OEO/AA FORMAL COMPLAINT
When the OEO/AA decides that a formal investigation is warranted, each Respondent is given a “Notice of Complaint and Allegations.” The purpose of the notice is to inform the Respondent that an investigation is being conducted to determine whether the Respondent has engaged in conduct that violates the University’s nondiscrimination policies. There may be multiple Respondents but each will be entitled to their own Notice of Complaint and Allegations. The Respondent(s) is given the notice and allowed two days to submit a written response. An initial interview will also be scheduled which will allow the Equal Opportunity Consultant (“Consultant”) to ask questions relevant to the investigation.
Information obtained during the investigation is considered private and will not be shared by the OEO/AA except in very limited circumstances based upon a very limited need-to-know basis. Generally, information is not shared with others during an investigation. Certain senior administration officials will receive notice that a complaint has been filed as well as a copy of the OEO Report.
Both the Complainant and the Respondent are provided a fair and equal opportunity to present their side of the story during an interview. The Consultant will conduct an interview of both the Complainant and Respondent separately and may interview other witnesses identified through the investigation. Even after the interview, both parties are welcome to contact the Consultant to provide further information that they believe is relevant to the investigation. The Consultant has the authority to determine what type of information to gather, including identifying witnesses, but parties are encouraged to submit information that they believe is relevant to the investigation.
Your Statement: Your statement may be one of the most critical aspects of an investigation, whether you are the Complainant or the Respondent. It is important to state facts and to be as accurate and detailed as possible. Evidence may include:
- The names and contact information of witnesses. Do not contact witnesses yourself or discuss the complaint since that may jeopardize the integrity of the investigation. It is important to think about whether the evidence a witness can provide is relevant to your case. Witnesses may be able to say that similar things have happened to them or to others, but that may not be helpful in understanding what happened in this particular case. It is also natural to want to provide witnesses who can talk about your character, but it is important to remember that the Consultant will be focused on facts and whether there has been a violation of university policy and not on the character of the person.
- Documentation such as letters, notes, etc.;
- Electronic records such as emails, text messages, recordings, video, social media posts, etc.
The OEO/AA will endeavor to complete the investigation within 60 days from the date the Complaint is filed. Sometimes additional time is necessary depending on the complexity of the investigation, the severity or extent of the alleged conduct, school breaks, or other good cause. In these cases, the Complainant and Respondent will be notified in writing of the status of the investigation. However, please also feel free to check on the status with the Consultant.
You are expected not to retaliate against any individuals who have exercised their rights under the university’s nondiscrimination policies, including filing a complaint, or any witnesses for participating in the OEO/AA process.
You are expected to maintain any information, including records or other documentation, you receive during an investigation as confidential as possible. It is appropriate for you to seek support from family members, friends, counselors, or others who are there to support you. Investigations can be very stressful for the Complainant, Respondent, and also for witnesses. The University Counseling Center can be reached at 801-581-6826 or http://counselingcenter.utah.edu/.
If you have further questions, please contact the Consultant assigned to your case or our office at 801-581-8365 or firstname.lastname@example.org.
There are three types of findings explaining whether the OEO/AA has determined whether the Respondent has violated the University’s nondiscrimination policy.
- No Cause: based upon the facts gathered during the investigation, according to the preponderance of the evidence standard, the evidence establishes there is no reasonable cause to establish that the Respondent violated the University’s nondiscrimination policy.
- Insufficient Evidence: Based upon the facts gathered during the investigation, according to the preponderance of the evidence standard, there is insufficient evidence to demonstrate whether the Respondent did or did not violate the University’s nondiscrimination policy.
- Cause: Based upon the facts gathered during the investigation, according to the preponderance of the evidence standard, there is reasonable cause to establish that the Respondent violated the University’s nondiscrimination policy.
In order to protect the confidentiality of witnesses and all parties involved and pursuant to the Family Educational Rights and Privacy Act (FERPA) and other state and federal privacy laws, names and other personally identifiable information may be redacted from the OEO Report that are provided to the Complainant and the Respondent.
- OEO Draft: The OEO/AA will provide an OEO Draft report to the parties. The parties have five (5) calendar days to submit written comments and any additional documents. The Consultant will review the responses from the parties and make any changes needed to the investigative report and/or conduct further investigation if needed.
- OEO Report: After reviewing written comments and documentation submitted by the parties and conducting further investigation, if warranted, the OEO/AA will issue the OEO Report. The report shall include: (a) a determination of whether the evidence, evaluated under a preponderance of the evidence standard, supports a finding that a violation of the University’s nondiscrimination policy occurred; and (b) any mitigating or aggravating factors. The OEO Report shall be provided to the Complainant and the Respondent and each of the parties will be notified of their right to request a hearing. The OEO Report is also issued to the cognizant Vice President.
Request for Hearing
When a timely Request for Hearing is filed, the OEO/AA shall convene a Hearing Committee.
A Hearing Committee consists of a five-person panel. There is a Committee Chair, two committee members of the same status (student, staff or faculty) as the Complainant and as the Respondent. No more than two students will serve on the Hearing Committee. There is an exception allowing the Hearing Committee to consist of a three-person panel and/or without student representation during school breaks or other time periods that present scheduling difficulties for students.
In cases where the OEO/AA finds that no violation of policy occurred and the complaint does not allege sexual misconduct, the Hearing Committee will determine whether a hearing should be held based upon review of the Complaint, the Respondent’s response, the written request for a hearing and the OEO Report. If the Hearing Committee determines it is unnecessary to hold a hearing, the OEO/AA will inform the parties that a hearing will not be held. Either party may appeal the decision to deny a hearing within 10 calendar days by submitting a written request to the cognizant Vice President. The decision of the Vice President is final.
In cases where the OEO/AA finds there has been a violation of the University’s nondiscrimination policy or the complaint alleges sexual misconduct, the Hearing Committee will hold a hearing and will not conduct an Initial Committee Review. Within ten (10) calendar days after the conclusion of the hearing, the Hearing Committee shall provide its written recommendation known as a “Committee Report” to the Cognizant Vice President and the OEO/AA.
Appeal to the President