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Policy

• Policy Statement on Discrimination and Harassment, including Sexual Harassment

  It is the policy of �Թϸ����� to provide an educational and employment environment free from all forms of intimidation, hostility, offensive behavior and discrimination, including sexual harassment. Such discrimination or harassment may take the form of unwarranted/offensive verbal or physical conduct or verbal or written derogatory or discriminatory statements that may result in decisions affecting status, promotions, raises, favorable work assignments, recommendations, class assignments or grades. Such behavior, or tolerance of such behavior, on the part of an administrator, supervisor, or faculty or staff member violates the policy of the University and may result in disciplinary action including termination. The conduct herein described is contrary to University policy and may be illegal under both state and federal law.

  The United States Equal Employment Opportunity Commission has defined sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

  1. submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
  2. submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
  3. such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.

  The state of New York has defined sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when:

  1. submission to such conduct or communication is made a term or condition either explicitly or implicitly to obtain employment, public accommodations, or public services, education or housing;
  2. submission to or rejection of such conduct or communication by an individual is used as a factor in decisions affecting such individual’ s employment, public accommodations or public services, education or housing;
  3. such conduct or communication has the purpose or effect of substantially interfering with an individual’s employment, public accommodations or public services, education or housing or creating an intimidating, hostile or offensive employment, public accommodations, public services, educational or housing environment.

  An employee and or student who believes he or she has been subject to illegal discrimination or harassment should report the conduct to his or her immediate supervisor, and in the event the supervisor is the aggrieving party, to the next higher responsible party. If necessary, the discrimination complaint grievance procedure should be utilized. Complaints should be reported to the Office of the Equity and Access in the Division of Diversity, Equity and Inclusion. The Division of Diversity, Equity and Inclusion can be reached at 607-777-4775 and is located in the Library South Ground Floor, Room 548.

Complaint Procedure for the Review of Allegations of Unlawful Discrimination

• Introduction

  �Թϸ�����, in its continuing effort to seek equity in education and employment and consistent with Federal and State antidiscrimination legislation, has adopted a complaint procedure for the prompt and equitable investigation and resolution of allegations of unlawful discrimination on the basis of race, color, national origin, religion, creed, age, disability, sex, gender identity or expression, sexual orientation, familial status, pregnancy, predisposing genetic characteristics, military status, domestic violence victim status, or criminal conviction. Harassment on the basis of any of the above protected categories is one form of unlawful discrimination. Conduct that may constitute harassment is described in Appendix A. For more detailed information, contact the Affirmative Action Officer (AAO).

  This Complaint Procedure for the Review of Allegations of Unlawful Discrimination provides a mechanism through which the University may identify, respond to, prevent and eliminate incidents of illegal discrimination. The University recognizes and accepts its responsibility in this regard and believes that the establishment of this internal, non-adversarial grievance process will benefit student, faculty, staff and administration, permitting investigation and resolution of problems without resorting to the frequently expensive and time-consuming procedures of State and Federal enforcement agencies or courts.

  This process has been developed in accordance with guidelines and recommendations provided by the Chancellor’s Office of Affirmative Action and is administered by Binghamton University’s AAO. The AAO directs the Office of Equity and Access and reports to the Vice President of Diversity, Equity and Inclusion. The AAO works in collaboration with Human Resources.

  These procedures have been approved by the �Թϸ�����, Office of the University Counsel. These procedures are intended to balance the rights of those bringing complaints of discrimination, harassment, and retaliation (the “Complainant”) with those against whom such claims are brought (the “Respondent”.) Throughout these procedures the “parties” shall refer to the Complainant, Respondent, and witnesses involved in the complaint.

  During any portion of the procedures detailed hereafter, the parties shall not employ audio or video taping devices.

  Confidentiality

  To the extent practicable, all aspects of the investigation conducted in accordance with these procedures will be confidential. All affected parties shall cooperate fully in the investigation and shall maintain and preserve the confidentiality of the investigation. All parties are required to refrain from engaging in any retaliatory action in relation to the complaint(s) and/or by responses to such complaint(s).

  Retaliation 

  An employee or student who participates in the procedure has the right to do so without fear of or actual retaliation. It will be made clear that retaliation against an employee, a student or a witness who has filed a discrimination complaint will result in appropriate sanctions or other disciplinary action as covered by collective bargaining agreements, and/or applicable University policies.

• Applicability of complaint procedure

  This procedure may be used if the Complainant or Respondent is a Binghamton student or a State or Research Foundation employee. Employee grievance procedures established through negotiated contracts, academic grievance review committees, student conduct boards and any other procedures defined by contract will continue to operate as before. Nor does this procedure in any way deprive a Complainant of the right to file with outside enforcement agencies, such as the New York State Division of Human Rights, the Equal Employment Opportunity Commission, the Office for Civil Rights of the United States Department of Education and the Office of Federal Contract Compliance of the United States Department of Labor. Contact information for these agencies is listed in Appendix B. More detailed information may be obtained from the Office of Equity and Access.

  The Complainant is not required to pursue the Binghamton internal procedure before filing a complaint with a State or Federal agency. In addition, if the Complainant chooses to pursue the Binghamton internal procedure, the Complainant is free to file a complaint with the appropriate State or Federal agency at any point during the process. Upon filing with an external agency, however, the Binghamton internal complaint may be referred to the Office of the University Counsel for review, defense or, if deemed appropriate by Counsel, involvement in mediation, conciliation or settlement with the external agency where the complaint was filed, or such other actions as may be in the interests of the University, including the termination of this internal process. 

• Role of the Affirmative Action Officer

  The Affirmative Action Officer (AAO) and/or designee is trained in investigating and resolving complaints. The staff is available for assistance in filing the complaint with the University and will remain impartial during an investigation. The AAO does not represent any individual or department, but does advocate on behalf of the University’s goals of equal opportunity and nondiscrimination.

  The AAO may receive initial inquiries, reports and requests for consultation and counseling. Assistance will be available whether or not a formal complaint is contemplated or even possible. It is the responsibility of the AAO to respond to all such inquiries, reports and requests as promptly as possible and in a manner appropriate to the particular circumstances. An individual may refuse to reduce a complaint to writing. However, notwithstanding that refusal, there may be a continuing obligation on the part of the University to investigate the verbal complaint to the best of its ability and proceed with any action that is warranted. Although in certain instances verbal complaints may be acted upon, the procedures set forth here rest upon the submission of a written complaint that will enable the AAO to conduct a full and fair investigation of the facts.

  The AAO shall solicit information concerning any factors that might prejudice an objective evaluation of the evidence and shall reassign an investigation if a conflict or potential conflict emerges.

  Supervisory Responsibility 

  Complaints or concerns that are reported to an administrator, manager or supervisor concerning an act of discrimination or harassment shall be immediately referred to the AAO. Complaints may also be made directly to the AAO.

  Confidentiality 

  The AAO will conduct the investigation in a confidential manner to the extent practicable. The AAO will instruct the parties and all other affected persons that the complaint investigation procedure is best able to achieve a mutually acceptable agreement for resolution of the complaint when confidentiality is not breached. Once breached, it will make it difficult for the AAO to conclude successfully the complaint investigation process to the satisfaction of the Complainant.

• Jurisdiction of the Office of Equity and Access

  �Թϸ����� is responsible for providing a learning and working environment free from discrimination. The University reserves the right to pursue any complaint of discrimination about which it becomes aware. Based on information received by the Office of Equity and Access, the AAO or designee may exercise their own discretion and initiate a complaint on behalf of the University community.

  In addition, the AAO may determine that a specific complaint of unlawful discrimination or harassment is of such a serious or potentially criminal nature that the investigative steps outlined in this process should be accelerated or eliminated. This determination, if made, shall be communicated to the President or his designee and to Human Resource for appropriate action, which may include the initiation of disciplinary and/or other action.

  If, at any time during the course of resolving or investigating a complaint of discrimination, the AAO or designee determines that a complaint is not within the jurisdiction of the office, the complaint and the Complainant shall be referred to the appropriate office and the matter shall be considered concluded for purposes of the Affirmative Action.

• Who can file a complaint?

  Employees may file a written complaint with the Affirmative Action Officer (AAO) within 90 calendar days following the alleged discriminatory act or the date on which the Complainant first knew or reasonably should have known of such act. Complainants may complete an intake form to initiate an investigation (see Appendix C). Students must file a complaint within 90 calendar days following the alleged discriminatory act or 90 calendar days after a final grade is received, for the semester during which the discriminatory acts occurred, if that date is later.

  It is the Complainant’s responsibility to be certain that any complaint is filed within the applicable 90-day period. In the event that the Complainant would be barred under these procedures, the Complainant may contact the AAO with regard to other avenues of recourse that may be available.

  If a Complainant elects to withdraw a complaint, this decision must be communicated in writing to the AAO indicating the reason for withdrawal. The University may nevertheless pursue its review of the allegations.

• Against whom may complaints be brought?

  A complaint of unlawful discrimination may be brought against any student or employee. If your complaint concerns behavior by a vendor or contractor or some other individual who may not be a member of the University community, but who may have an affiliation or a recognized connection to Binghamton, you may bring your concerns to the attention of the Office of Equity and Access staff and they will assist you, wherever practicable.

  If the President is the Respondent, the AAO reserves the right to refer the complaint to the Office of University Counsel. The findings and recommendation shall be submitted to the Chancellor or their designee. If the AAO is the Respondent, the matter shall be referred to the President or their designee.

• Procedures for resolving complaints

  Complaint Consultation & Review₁ 

  Any member of the University community may consult with the Division of Diversity, Equity and Inclusion (DEI) or Affirmative Action Officer (AAO) regarding potential discrimination or harassment. The length of time for the consultation varies depending on factors such as the complexity of the situation, office workload, or whether the situation involves actual or imminent loss of employment or academic standing, potential physical harm, or an ongoing relationship between the involved individuals. In a telephone conversation or in person appointment, a staff member will:

  • receive complaints of alleged discrimination or harassment;
  • discuss the facts of a situation and help the individual identify the problem(s);
  • assist the Complainant in the use of the complaint form to define the charge;
  • determine if the AAO is the appropriate University resource to address the concern;
  • inform the individual of the ways in which the AAO approaches problem solving;
  • explore methods of resolving the situation on one’s own, if that is the individual’s preference;
  • advise an individual of alternate available University resources and external options for resolution;
  • provide the Complainant with information about the various internal and external mechanisms through which the complaint may be filed, including applicable time limits for filing with each agency.

  Each Party’s Rights and Responsibilities 

  The University’s formal review procedures are not designed to replicate an external judicial process. Consequently:

  • Complainants and Respondents are expected to meet with representatives of DEI or the AAO as needed and as requested;
  • Legal counsel retained by a Complainant or a Respondent may not participate or be present at any meeting convened by AAO unless otherwise required by law;
  • Respondents and Complainants are expected to communicate with the AAO directly, not through legal counsel, other intermediaries or persons accompanying the parties;
  • Complainants and Respondents have the right to receive notice of all actions, recommendations, determinations and findings made by the AAO.

  Intake Interview 

  The AAO will ask a Complainant to participate in an initial interview. During this initial contact known as the Intake Interview, the Complainant will be:

  • asked to complete an Intake and Information Sheet. (The Complainant may be asked to have this completed prior to the Intake Interview;)
  • interviewed about the allegations so that the charge may be clearly stated;
  • asked to provide information about witnesses and other possibly aggrieved persons;
  • advised of the office’s intake procedures to enhance the Complainant(s) understanding and to facilitate realistic expectations as to the role of the office;
  • referred to a proper University department/agency if the complaint does not fall within the jurisdiction of the AAO;
  • advised of the protection against retaliation;
  • advised of the university policy on confidentiality;
  • advised of the option to file a complaint with one of the external Federal/State investigative agencies at any time.

  Should the AAO determine that a complaint of unlawful discrimination merits further review, they will immediately commence an investigation. The complaint shall contain:

  • The name, local and permanent address(es), and telephone number(s) of the Complainant;
  • A statement of facts explaining what happened and what the Complainant believes constituted the unlawful discriminatory acts in sufficient detail to give each Respondent reasonable notice of what is claimed against him/her. The statement should include the date, approximate time and place where the alleged acts of unlawful discrimination or harassment occurred. If the acts occurred on more than one date, the statement should also include the last date on which the acts occurred as well as detailed information about the prior acts. The names of any potential witnesses should be provided, if appropriate;
  • The name(s), address(es) and telephone number(s) of the Respondent(s), i.e., the person(s) claimed to have committed the act(s) of unlawful discrimination;
  • Identification of the status of the persons charged, whether faculty, staff, student or affiliated individual;
  • A statement indicating whether or not the Complainant has filed or reported information concerning the incidents referred to in the complaint with a non--‐‑University official or agency, under any other complaint or complaint procedure. If an external complaint has been filed, the statement should indicate the name of the person or department or agency with which the information was filed and its address or to which it was reported;
  • Other supplemental information as may be requested.

  If the Complainant brings a complaint beyond the period in which the complaint may be addressed under these procedures, the AAO may terminate any further processing of the complaint, refer the complaint to University Counsel or direct the Complainant to the appropriate alternative forum (see Appendix B for a list of alternative forums).

  Investigative Procedures 

  If a Complainant elects to have the matter dealt with in an informal manner, the AAO will attempt to reasonably resolve the problem to the mutual satisfaction of the parties. The AAO or designee will attempt to resolve the complaint at the earliest intervention point. If these efforts are not successful, and the AAO or designee has determined that the complaint merits further investigation, the Complainant and Respondent shall be advised in writing of the initiation of an investigation. During this investigation the AAO or designee will:

  • Provide an initialed, signed, date--‐‑stamped copy of the complaint to the Complainant;
  • Review all University records that concern the complaint;
  • Interview witnesses;
  • Review statements provided by both the Complainant and the Respondent(s);
  • Review other relevant and material evidence;
  • Will take all reasonable steps necessary to complete the investigation within ninety (90) calendar days after receipt of the complaint. If such is not possible, the AAO may extend this deadline for a reasonable period of time. The Complainant will receive notification from the AAO or designee regarding the basis for extension.

  Failure to Cooperate 

  If the Respondent refuses to cooperate and/or respond in a timely manner, the AAO may forego completion of an investigation and refer the matter to Human Resources, or the office may take any other action it deems necessary and appropriate to address the situation. Failure to cooperate meaningfully in a review of a complaint of discrimination may be grounds for discipline.

  Inaction by Complainant 

  If at any time during an investigation, a Complainant declines to cooperate with the AAO or designee, or if the AAO determines that the Complainant no longer wishes to pursue his/her complaint, the AAO may consider the matter closed and take no further action, with appropriate notification.

  Evaluating the Evidence and Resolution 

  In reaching its findings, the AAO or designee shall evaluate the conduct alleged to have been discriminatory by considering the totality of the circumstances, including the nature, frequency, intensity, context and duration of the conduct. Although repeated incidents would create a strong claim of discrimination, a serious isolated incident can present sufficient grounds for corrective action.

  The AAO shall make every reasonable effort to resolve the matter. Resolution may take any form that is acceptable to the parties and to the University. It may, for example, take the form of:

  • Separate meetings with the Complainant and Respondent;
  • Joint meetings between the Complainant and Respondent with the AAO serving as a facilitator;
  • A meeting with the supervisor of the Complainant and/or Respondent;
  • A written agreement or memorandum of understanding signed by one or both of the parties;
  • Mandated trainings in the areas of discrimination for the Respondent or the departmental unit;
  • A verbal warning to Respondent;
  • A written warning to Respondent;
  • No further action at the request of Complainant.

  This list is not exhaustive and another form of resolution may be appropriate although it is not listed here.

  Determination 

  The AAO or designee issues a written statement to the Complainant and Respondent, indicating the finding at the conclusion of the investigation. If a resolution satisfactory to both the Complainant and the Respondent is reached through the efforts of the AAO, the AAO shall close the case, sending a written notice to that effect to the Complainant and Respondent.

  The actions proposed in this finding may consist of:

  1. A determination that the complaint was not substantiated.
     1. If the AAO determines that there is insufficient credible evidence to support the allegation(s) of discrimination, the complaint shall be dismissed, the matter shall be concluded and the University shall take no further action.
  2. A determination that the complaint was substantiated.
     1. For Employees (including student employees) not in a Collective Bargaining Unit –In consultation with Human Resource and the Office of University Counsel, the President may take such administrative action as he deems appropriate under his authority as the chief administrative officer of the University, including but not limited to termination, demotion, reassignment, suspension, reprimand, or training.
     2. For Students – the AAO may determine that sufficient information exists to refer the matter to the student judiciary or other appropriate disciplinary panel for review and appropriate action under the appropriate student conduct code.
     3. For Employees in Collective Bargaining Units – the AAO may determine that sufficient information exists to refer the matter to Human Resource for investigation and disciplinary action or other action as may be appropriate under the applicable collective bargaining agreement. Corrective action may include, but is not limited to: reprimand, mandatory counseling, written counseling, probation, suspension, termination of employment, non-renewal of contract or involuntary withdrawal from a program of study.

  If the President is the Respondent, the Chancellor or his designee shall issue a written statement indicating what action the Chancellor proposes to take. The Chancellor’s decision shall be final for purposes of this discrimination procedure.

  The AAO may:

  • place a confidential written report in its file, subject to applicable law and policy, and disclosure, if required by law;
  • prepare and distribute a written report to the Complainant, Respondent and any other person who may have need to know how the complaint was resolved;
  • refer the matter to another department or administrator in the University for further review.

  If the AAO or designee is unable to resolve the complaint to the mutual satisfaction of the Complainant and Respondent, the AAO shall so notify the Complainant. The AAO shall again advise the Complainant of his or her right to separately file with appropriate external enforcement agencies. There is no right of appeal when the AAO determines that there is insufficient reasonable, credible evidence to support the allegation(s) of discrimination.

• Appendix A: Definitions and prohibited acts and behaviors

  Sexual Harassment in the Employment or Educational Setting is defined as: 

  Unwelcome sexual advances, requests for sexual favors, or verbal/nonverbal or physical conduct of a sexual nature when:

  • Submission to such conduct is made either an explicit or implicit term, condition, status of an individual’s employment, or admission to, or continued participation in, an academic program;
  • Submission to or rejection of such conduct is used as a basis for decisions affecting an individual’s employment status, conditions of terms of employment, or academic standing;
  • Such conduct has the purpose or effect of substantially interfering with an individual’s performance on the job or in the classroom or creates an intimidating, hostile, or offensive work or study environment.

  Sexual Harassment in the Educational Setting is defined as: 

  Unwelcome conduct of a sexual nature. Sexual harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. Sexual harassment of a student denies or limits, on the basis of gender, the student’s ability to participate in or to receive benefits, services, or opportunities in the educational institution’s program.

  Harassment on the Basis of Other Protected Characteristic(s) 

  Harassment based on race, color, age, religion, or national origin (including an individual’s ancestry, country of origin, or country of origin of the student’s parents, family members, or ancestors), disability, sexual orientation or other protected characteristics may be oral, written, graphic or physical conduct relating to an individual’s race, color, or national origin that is sufficiently severe, pervasive, or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the educational institution’s programs or activities, or terms, conditions or status of employment.

  Retaliation 

  An employee or student who participates in the procedure has the right to do so without fear of retaliation. It will be made clear that retaliation against an employee, a student or a witness who has filed a discrimination complaint will result in appropriate sanctions or other disciplinary action as covered by collective bargaining agreements, and/or applicable University policies.

• Appendix B: External enforcement agencies

  New York State Division of Human Rights 

  State Headquarters 

  New York State Division of Human Rights
  One Fordham Plaza
  4th Floor
  Bronx, New York 10458
  Tel: (718) 741-8400
  Fax: (718) 741-3214

  Binghamton 

  New York State Division of Human Rights 
  44 Hawley Street, Room 603
  Binghamton, New York 13901
  InfoBinghamton@dhr.ny.gov
  Tel: (607) 721-8467
  Fax: (518) 473-2955 

  Office of Sexual Harassment 

  New York State Division of Human Rights
  Office of Sexual Harassment
  55 Hanson Place, Room 900
  Brooklyn, New York 11217
  InfoOSHIQns@dhr.ny.gov
  Tel: (718) 722-2060 or 1-800-427-2773
  Fax: (718) 722-2039

  Office of AIDS Discrimination 

  New York State Division of Human Rights 
  20 Exchange Place, 2nd Floor 
  New York, New York 10005
  Tel: (212) 480-2522
  Fax: (212) 480-0143

  United States Department of Labor 

  Office for Federal Contract Compliance Programs

  201 Varick St. 
  Room 705 
  New York, New York 10014
  Tel: (212) 337-2006
  Fax: (212) 620 7705

  Buffalo District Office

  6 Fountain Plaza
  Suite 300
  Buffalo, NY 14202-2199
  Tel: (716) 551 5065
  Fax: (716) 551- 4035

  New York District Office

  26 Federal Plaza
  Room 36-116
  New York, New York 10278
  Tel: (212) 264-7742
  Fax: (212) 264-8166

  New York State Department of Labor 

  New York State Department of Labor

  State Campus
  Building 12, Room 500 
  Albany, NY 12240
  Tel: (518) 457-2746
  Fax: (518) 457-6908

  United States Equal Employment Opportunity Commission 

  EEOC National Headquarters

  1801 L. Street, N. W.
  Washington, D. C. 20507
  Tel: (202) 663-4900
  Fax: (202) 663-4912

  EEOC Field Office

  6 Fountain Plaza
  Suite 350 
  Buffalo, New York 14202
  Tel: (716) 551-4441
  Fax: (716) 551-4387

  Office for Civil Rights 

  OCR National Headquarters 

  U. S. Department of Education
  Office of Civil Rights
  Customer Service Team
  Mary E. Switzer Building
  330 C. Street, S. W.
  Washington, D. C. 20202
  Tel: (800) 421-3481
  Fax: (202) 205-9862

  Office for Civil Rights 

  New York Office
  U. S. Department of Education
  32 Old Slip, 26th Floor
  New York, NY 10005-2500
  Email: OCR.NewYork@ed.gov 
  Tele: (646) 428-3800
  Fax: (646) 428-3843 

• Appendix C: Affirmative Action Complaint Intake Form

  The Affirmative Action Complaint Intake form can be used by students, employees, and third parties to file a complaint of discrimination based on race, color, national origin, religion, creed, age, disability, sex, gender identity, sexual orientation, familial status, pregnancy, predisposing genetic characteristics, military status, domestic violence victim status, or criminal conviction.

  Download printable Discrimination Complaint Procedures and Form