Non-Discrimination Policy - NMU Policies and Requirements

This procedure is designed for most discrimination complaints other than sex discrimination/harassment.  Please see the Relationship Violence, Sexual Misconduct and Stalking Policy for complaints of gender or sex discrimination/harassment.

In cases where reports are based on discrimination/harassment based on sex or gender and other protected characteristics, the Equal Officer/Title IX Coordinator will determine the appropriate policies and procedures to be applied.  The definitions applied to the policy and this procedure are listed under the Definitions section.

Prohibition Against Retaliation

Retaliation against anyone who files a claim, who is named as a respondent, or who participates in the resolution of a case, regardless of the outcome of the case, is expressly prohibited, will be investigated, and could lead to discipline and possible dismissal or expulsion.

Prohibition Against False Claims

Deliberate filing of a materially false claim is expressly prohibited and could lead to discipline and possible dismissal or expulsion.

Confidentiality Expectations

Confidentiality is expected to the fullest extent possible from all who are involved in a claim, directly or indirectly, but the Equal Opportunity Office cannot guarantee anonymity or confidentiality.

Reporting and Resolution

All reports of discrimination/harassment involving employment or employees shall be promptly reported to an immediate supervisor or the Equal Opportunity Officer/Title IX Coordinator. Supervisors are responsible for immediately notifying the Equal Opportunity Officer/Title IX Coordinator of discrimination complaints.

All reports shall be assessed and, where appropriate, may result in a formal investigation with associated follow up.

When a report is made, the Equal Opportunity Office will assess the facts and circumstances and consider the complainant’s expressed preference for manner of resolution.  The University will seek action consistent with the complainant’s request when possible.

Investigation Process

The following outlines the University’s timeline, investigation process, final summary of findings, and appeal process for employees.

Timeline

The University will use its best efforts to complete its investigation within 60 calendar days of the commencement of a formal investigation, although this time line may be extended for good cause. Good cause may include, but is not limited to the complexity of each allegation, the availability of witnesses, University breaks or vacations, or other legitimate reasons.

In the event a time frame is extended, both the complainant and respondent will be notified of the extension and the reason for the extension.

Formal Investigation Process

Any student, staff member, or faculty member may file a complaint of discrimination with the Equal Opportunity Office against any other member of the university community who is believed to have violated the policy.

The Equal Opportunity Office may initiate a formal investigation to determine if there has been a policy violation, and if so, whether sanctions are warranted. The Equal Opportunity Office has the discretion to consolidate multiple reports involving a respondent into one investigation and resolution if the evidence related to each incident would be relevant in reaching a determination on any other incident.

Faculty and staff investigations will be typically completed by the Equal Opportunity Office, although the investigator(s) may be any appropriately designated employee of the University, or external investigator(s) assigned by the Equal Opportunity Office.   The investigator(s) chosen to conduct the investigation must be impartial and free of any conflict of interest.

During the formal investigation, both the complainant and the respondent will have the opportunity to provide evidence and names of witnesses to the investigator(s).

The investigator(s) will update both the complainant and respondent regarding the status of the formal investigation at reasonable, regular intervals.

Dismissal

At the outset of the investigation process, or at any time during an investigation process, the Equal Opportunity Office, with the Director’s approval, will determine whether the reported conduct is sufficient to proceed to a formal investigation. The Office shall not conduct a formal investigation if the conduct, as reported and taken as true, does not meet the definition of discrimination, harassment, or retaliation under the Non-Discrimination Policy. The Equal Opportunity Office also reserves the right to close an investigation when the responding party is no longer a University employee or student, when the complainant requests that the investigation be closed, or when the Office does not have jurisdiction over the reported conduct.

In all cases where a matter is dismissed and no formal investigation will occur, the Office will notify, in writing, any parties who are aware of the investigation or report, including the reasons for dismissal. There is no right to appeal a dismissal decision. A new matter may be opened if there is new or additional information of which the Equal Opportunity Office becomes aware that changes the dismissal determination. The Office shall also provide notice of the dismissal to the appropriate department for consideration under policies outside the Equal Opportunity Office’s jurisdiction.

Final Summary of Findings

The investigator(s) provides the final investigation summary of findings and recommendation remedies and/or sanctions to the complainant and the respondent in a formal investigation.

The complainant and the respondent will be sent notification of the outcome of the investigation, using email, which serves as a method for documenting distribution.

Appeal Process

The complainant or respondent may submit written notice of appeal of the formal investigation summary of findings based on fact to the Vice President for Finance and Administration within seven (7) calendar days of receiving the summary of findings and notice of determination.  Either Party may file an appeal.

Appeals are limited to the following: 

• procedural error that has materially affected the summary of findings
• new evidence that would change the outcome that was not reasonably available at the time the determination regarding responsibility or dismissal was made
• Equal Opportunity Administrator, Investigator(s), or Decision Maker had a conflict of interest or bias for or against Complainants or Respondents generally, or the individual Complainant or Respondent that would change the outcome.

Information which was known to the person appealing, but withheld, will not be considered on appeal.

The receipt of the appeal will be acknowledged by the Finance and Administration Office via email.

Parties will be notified via email of the filing and status of appeals by the Vice President for Finance and Administration Office.

After receiving the appeal request, the Vice President for Finance and Administration or the Vice President for Finance and Administration’s designee will convene an Appeal Review Group of three (3) people.  This group shall be empowered to review the case file, gather additional information and interview witnesses, including the parties, if the group deems necessary, within twenty-one (21) calendar days from the convening of the Appeal Review Group.

The Equal Opportunity Office will provide assistance to the Vice President for Finance and Administration and the Appeal Review Group upon request.  

The appealing party or parties may be asked to submit additional information supporting the basis for the appeal, if not previously submitted. Any additional material requested must be submitted within five (5) calendar days upon request. Failure to respond will result in the information not being considered for review during the appeal review.

Within seven (7) calendar days after completion of the appeal, the chairperson of the Appeal Review Group will issue a determination to the Vice President for Finance and Administration.

• If the Appeal Review Group determines the grounds for appeal materially change the summary of findings, it will submit a written report supporting this change in findings, along with the recommendation for further action (which may propose, among other options, remand back to the Equal Opportunity Office or a reversal of the findings), to the Vice President for Finance and Administration.
• If the Appeal Review Group finds that the grounds for appeal do not materially change the summary of findings, it shall recommend to the Vice President that the appeal be denied.

The Vice President for Finance and Administration will review the recommendation of the Appeal Review Group and make a determination.  The Vice President for Finance and Administration will notify the appealing party, via email, of the appeal outcome.  The decision of the Vice President for Finance and Administration shall be final and shall become part of the record.

Sanction Process for Employees (Faculty and Staff) as Respondent

Sanctions for respondents, who are employees, will be determined by Academic Affairs and/or Human Resources, with input from other offices as appropriate.

• Represented Employees: sanctions will be imposed in accordance with the applicable collective bargaining agreement and University policy and procedures.
• Unrepresented Employees: sanctions shall be determined in accordance with University policies and procedures, individual contracts, and/or appointment letters.

The potential sanctions for an employee may include, but are not limited to, training, referral to counseling, no contact order, no trespass, loss of privileges, written warning, reprimand, withholding of a promotion, reassignment, temporary suspension without pay, or separation from the University.

All rights afforded to the respondents in a collective bargaining agreement, Human Resources policy or procedure, individual contract or appointment letter will be afforded to the complainant was well.

Investigation Documentation

Individuals involved in the investigation and appeal process will adequately document the testimony of the parties and witnesses, relevant investigation documents, all facts and evidence reviewed, the rationale for determinations, and interim and final remedies and sanctions imposed, if any.  All documentation will be submitted to and maintained in the Equal Opportunity Office.

Misconduct by Third Parties

University students participate in NMU academic programs (examples:  student teaching, internships, clinical lab practicums, conferences, student trips, etc.) with or under the supervision of persons who are not University faculty or staff. If a student believes that she or he has been subject to discrimination/harassment in a University academic program by an individual who is not a University employee or student, the student should report the alleged discrimination/harassment to the faculty member, department head or dean responsible for that academic program or to the Equal Opportunity Office.

When performing their jobs, University faculty and staff interact with contractors, suppliers, or customers who are not University faculty, staff or students. If a University employee (including a student employee) believes that he or she has been discriminated/harassed within the scope of his or her employment activities by an individual who is not a University employee or student, the University employee should report the alleged discrimination/harassment to his or her supervisor or to the Equal Opportunity Office or to Human Resources.

Individuals who are not students or faculty and staff of the University are not subject to discipline under the University's internal processes. Nonetheless, if the University determines that a third party has perpetrated discrimination/harassment within the scope of her or his employment, the University will take corrective action, which may include terminating a contract.

*All dates noted are considered business days when the university is in operation.  

Definitions

Harassment

Harassment is unwelcome conduct that is based on a protected characteristic, which includes ancestry, race, color, ethnicity, religion or creed, sex or gender, gender identity, gender expression, genetic information, national origin, immigration status (unless restricted by State or federal laws and regulations), age, height, weight, marital status, familial status, pregnancy, disability, sexual orientation, military or veteran status, or any other characteristics protected by federal or state law in employment or the provisions of services.  

NMU provides, upon request, reasonable accommodations including auxiliary aids and services necessary to afford individuals with disabilities an equal opportunity to participate in all programs and activities.  

Harassment does not include constitutionally protected activity or conduct. The University prohibits harassment on any of its campuses and by any person while engaged in on- or off-campus University business.

Harassment based on protected characteristics is a violation of policy when:

• Harassing conduct results in an explicit adverse change to a term, condition, or privilege of employment, or
• Harassing conduct creates a hostile work environment. A hostile environment is an on-campus, online, or remote environment, that through harassing conduct (e.g. physical, verbal, graphic, or written) based on a person’s protected characteristic status, becomes so severe or pervasive, and subjectively and objectively offensive that a reasonable person in the employee’s position would find the situation to be an abusive work or educational environment, or interferes with the individual’s ability to participate in or benefit from a University program, activity, and/or employment.

Discrimination

Discrimination is the unequal or unfair treatment of a person on the basis of that person’s ancestry, race, color, ethnicity, religion or creed, sex or gender, gender identity, gender expression, genetic information, national origin, immigration status (unless restricted by State or federal laws and regulations), age, height, weight, marital status, familial status, pregnancy, disability, sexual orientation, military or veteran status, or any other characteristic protected by federal or state law. Discrimination occurs when persons are excluded from participation in, or denied the benefits of, any University program or activity because of their protected status.

Discrimination can be found by direct or indirect evidence. Direct evidence is found where a preponderance of the evidence establishes discriminatory intent without inference or assumption. In the absence of direct evidence, the Office will evaluate whether a preponderance of the evidence establishes that complainant:

• asserts a claim based on their protected characteristic identity;
• suffered an adverse action; and 
• other similarly situated individuals outside of the complainant’s protected characteristic were treated more favorably.

For the purposes of discrimination, an adverse action in employment may be a demotion, termination, decrease in wages or salary, a loss of benefits, or other harm to an identifiable term or condition of employment. In the education context, it may include, but is not limited to, a grade not based on class or test performance; denial of access to a course, program, organization, or housing; denial of support, services, or other assistance given to other students; or denial of an award or scholarship that otherwise would have been received. If adverse action is established, the Office will then evaluate whether there was a legitimate, nondiscriminatory reason for the adverse action that was actually a motivating factor for the adverse action, as opposed to a pretext.

Pretext may be established by showing the proffered legitimate, nondiscriminatory reason:

• had no basis in fact; 
• did not actually motivate the adverse action; or 
• was insufficient to warrant the adverse action.

Discrimination may also be found where a facially neutral policy or practice had a disproportionate adverse effect on individuals of a protected characteristic. The Office will evaluate, in such a case, whether there was a substantial legitimate justification for the policy or practice, and if so, whether there was an alternative policy or practice that would achieve the legitimate objective but with less of a discriminatory effect.

Pregnancy Discrimination
Pregnancy discrimination is discrimination on the basis of pregnancy, childbirth, false pregnancy, termination of a pregnancy, or recovery therefrom.  It can occur when persons are excluded from participation in, or denied the benefits of, any university program or activity because of their pregnancy unless they request voluntarily to participate in a separate portion of the program or activity or choose not to participate.  

Parenting Discrimination
Parenting Discrimination is based on rules concerning parental, family, or marital status. These rules may not be applied differently based on sex or gender. For example, universities cannot provide women with time to bond with or care for their children and not men.
    
Disability Discrimination, Failure to Accommodate
Where an individual believes they have been discriminated against due to their disability, the above standards and definition will apply, except that to demonstrate disability discrimination, there must be a showing that Complainant:

• has a disability;
• is otherwise qualified to participate in the educational program or perform the essential functions of the job, with or without accommodation; and 
• suffered an adverse action, or was excluded from participation in, denied the benefits of, or subjected to disparate treatment or disparate impact under the program by reason of their disability.

To demonstrate a failure to accommodate claim, the evidence must demonstrate that the Complainant: 

• has a disability; 
• is otherwise qualified for the job or educational program; and 
• the Respondent failed to implement Complainant’s documented or known accommodations/modifications.

The University’s grant or denial of an accommodation, and whether an accommodation or modification constitutes a “fundamental alteration” or is “essential to the program of instruction,” is not determined through this process. Please contact Human Resources, which makes final determinations in this regard.

Retaliation

Retaliation is engaging in adverse action against a reporting party/complainant, responding party/respondent, or any individual or group of individuals involved in the complaint, investigation, and/or resolution of an allegation of a violation, which affects their employment, academic/student, or business status that is motivated in whole or in part by their participation in the process.

In addition, the University will not tolerate retaliation against persons due to their assertion of their protected civil rights, including filing complaints with federal or state civil rights enforcement agencies, bringing the University’s attention to prohibited activity, or participation in an investigation of such a complaint.

Retaliation is expressly prohibited by University policy and could lead to discipline, including possible termination or dismissal.

Retaliation can take many forms, including but not limited to threats, intimidation, pressuring, demotion, and/or continued harassment.  Persons who feel that they have been subject to retaliation may file a complaint based on the alleged retaliation in the same manner as for the initial complaint. Conduct that constitutes retaliation may be found regardless of whether or not the underlying complaint is found to have merit.
In the context of retaliation, an adverse action is an action that might have dissuaded a reasonable person from engaging in a protected activity.

Examples of Prohibited Practices

• Retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices
• Denying employment opportunities to a person because of marital status, or association with, an individual of a particular race, religion, national origin, or an individual with a disability.