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Introduction
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination and harassment based on race, color, religion, ethnicity, sex and national origin, and Title IX of the Education Amendments of 1972 prohibits sex-based discrimination and sexual harassment of students and employees in educational programs and activities. Other federal, state, and local laws prohibit various forms of discrimination and harassment. NYIT is committed to providing equal opportunity in accordance with the law and a positive working environment free from unlawful discrimination and harassment.
For that reason, NYIT has developed an overarching Non-Discrimination and Discriminatory Harassment Policy applicable to all NYIT community members, including employees. The Non-Discrimination and Discriminatory Harassment Policy is deemed incorporated by reference into this employee handbook, and all employees are expected to be familiar with it.
While the principles of non-discrimination are consistent throughout the institution and its policies, this Non-Discrimination Policies and Procedures for Employees is intended to address certain rights and requirements specific to employees, and to set forth the resolution processes applicable to complaints of discrimination, harassment or retaliation asserted against employees.
Non-Discrimination in Employment
In accordance with NYIT's Non-Discrimination and Discriminatory Harassment Policy, NYIT will ensure that no decision concerning the terms and conditions of employment, including but not limited to recruitment, decisions to hire, promotions, compensation, benefits, transfers, reductions in staff, and rehires, will be based on race, creed, color, national or ethnic origin, sex, gender, gender identity, gender expression, age, mental or physical disability, sexual orientation, genetic information, religion, pregnancy, veteran status, marital status, citizenship, reproductive health decisions of the employee or their dependent, or any other basis protected by applicable local, state, or federal law.
In accordance with New York State Labor Law 203-E, reproductive health decision(s) of an employee or their dependent are included as a protected classification. Such protected decisions include, but are not limited to, using or accessing a particular drug, device or medical service. Employees will never be asked to sign a waiver or other document denying the right to make their own reproductive healthcare decisions. The institution will not access an employee's personal information regarding the employee's or the employee's dependent's reproductive health decision making without the employee's prior informed affirmative written consent. Employees have the right under New York State law to bring a civil action against the institution for alleged violations of these rights.
Discriminatory Harassment Including Sex Harassment
Discriminatory harassment is likewise prohibited under NYIT's Non-Discrimination and Discriminatory Harassment Policy. This occurs when an employee is subject to unwelcome and objectively offensive conduct based on their membership (actual or perceived) in a protected class, which: creates an intimidating, hostile, or abusive working environment; alters the conditions of employment; or unreasonably interferes with an individual's working performance. Forms of harassment include but are not limited to: epithets or slurs; negative stereotyping; threatening or intimidating acts; denigrating jokes; and display or circulation in the working environment (including through email) of written or graphic material.
Sex-based and sexual harassment, which are described in further detail below, are forms of discriminatory harassment. They also implicate NYIT's Gender Based Misconduct and Title IX Policy, which applies to all NYIT employees and is incorporated by reference into this employee handbook.
Sexual harassment in the workplace includes unwelcome conduct which is either of a sexual nature or which is directed at an individual because of that individual's sex or gender (including pregnancy, childbirth and related medical conditions), gender identity or gender expression (including transgender status) and/or sexual orientation when: (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment or enrollment, (2) submission to or rejection of such conduct by an individual is used as a 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.
Sexual harassment may involve individuals of the same or different sex. The complainant does not necessarily have to be the person harassed but could be anyone affected by the offensive conduct. Under New York State law, the conduct must be more than petty slights or trivial inconveniences to constitute sexual harassment, but does not have to rise to the level of severe or pervasive conduct. New York State law also makes clear that a person's intent, or lack of intent, to harass is irrelevant in determining whether their conduct constitutes sexual harassment.
As with other forms of harassment, sexual harassment can be verbal (e.g. words, jokes, insults or teasing), visual (e.g., offensive posters, symbols, cartoons, drawings, computer displays, text messages, social media posts or emails) or physical conduct (e.g., unwanted touching, physically threatening another), when it denigrates or shows hostility or aversion towards an individual based on sex or gender (including pregnancy and related conditions), gender identity, gender expression and/or sexual orientation.
Examples of conduct that violate this policy include:
- unwelcome sexual advances, flirtations, advances, leering, whistling, touching, pinching, assault, blocking normal movement
- requests for sexual favors or demands for sexual favors in exchange for favorable treatment
- obscene or vulgar gestures, posters, or comments
- sexual jokes, noises, or comments about a person's body, sexual prowess, sexuality, sexual experience, or sexual deficiencies
- propositions, or suggestive or insulting comments of a sexual nature
- derogatory cartoons, posters, and drawings
- sexually-explicit emails, text messages, posts or voicemails
- conversation about one's own or someone else's sex life
- conduct or comments consistently targeted at only one gender, even if the content is not sexual
- teasing or other conduct directed toward a person because of the person's gender
- sex stereotyping
Title IX
This Non-Discrimination Policies and Procedures for Employees is intended to comply with New York State labor laws and federal Title VII laws for all forms of discriminatory harassment in employment. However, sex-based discrimination, harassment, or retaliation may also constitute a violation of federal law under Title IX, and would be subject to NYIT's Gender Based Misconduct and Title IX Policy. The specific offenses covered under that policy include: sex discrimination, sex-based/sexual harassment, sexual assault, dating and domestic violence, stalking, sexual exploitation, and sex-based retaliation. Employees should familiarize themselves with the Gender Based Misconduct and Title IX Policy, as it provides certain rights and options to parties which are unique to these offenses. It also describes the duties that employees have as mandated reporters of incidents which are disclosed to them.
Reporting Policy Violations
If you are an employee and believe that NYIT's discrimination and discriminatory harassment policies have been violated, you are encouraged to promptly report the offensive conduct immediately to the Office of Human Resources or to a trusted supervisor. If you are the subject/victim of the misconduct, you are not required to report; however, NYIT encourages reporting so that it may take action to address the behavior.
If you become aware of or suspect incidents of gender-based misconduct directed at others, all employees must report these incidents to the Title IX Coordinator unless they are designated as a confidential employee in the Gender-Based Misconduct and Title IX Policy. This includes incidents involving students.
Other complaints that a student has engaged in offensive conduct should be reported immediately to the Office of Student Life, which has the authority to address student disciplinary matters through the Student Code of Conduct.
Every supervisor who learns of any employee's concern about conduct in violation of these policies, whether in a formal or informal complaint, must immediately report the issues raised to the designated offices set forth above.
Reports may be made orally or in writing. Written complaints may be submitted internally using the complaint form appearing at the end of this policy.
Confidentiality and Non-Retaliation
Confidentiality will be protected to the maximum extent possible, consistent with a fair and thorough investigation and NYIT's obligation to ensure the safety of the community. The investigation of such complaints will generally require limited disclosure on a need-to-know basis.
Retaliation is adverse conduct taken because an individual reported an actual or perceived violation of NYIT's non-discrimination policies, opposed practices prohibited by the policies, participated in the reporting and investigation process set forth in the policies or testified or assisted in an investigation or proceeding involving an actual or perceived violation of the policies. Adverse conduct includes, but is not limited to: any action that would keep an employee from reporting discrimination or discriminatory harassment; shunning and avoiding an individual who reports such misconduct; express or implied threats or intimidation intended to prevent an individual from reporting such misconduct; and denying employment benefits because an applicant or employee reported or encouraged another employee to report such misconduct or participated in the reporting and investigation process.
Retaliation against individuals who complain of discrimination or harassment or who testify or assist in any investigation or proceeding involving discrimination or harassment is unlawful and prohibited by NYIT policy. Offending employees will be subjected to appropriate disciplinary action, up to and including suspension or termination of employment.
Under Title IX, sex-based discrimination and harassment offenses have their own requirements and definitions regarding confidentiality and retaliation, as described in the Gender Based Misconduct and Title IX Policy and in the procedures below.
Employee Grievance Procedure
Applicability
This procedure applies to all complaints of discrimination, discriminatory harassment, or retaliation, unless it is an offense under the Gender Based Misconduct and Title IX Policy with a student complainant.
All complaints or grievances reported as set forth above, or information about suspected discrimination, discriminatory harassment, or retaliation will be reviewed and any potential policy violation will be investigated.
Complaints of sex-based discrimination, harassment, and retaliation (with or without student complainants) are subject to the Gender-Based Misconduct and Title IX Policy provisions regarding initial evaluation, complaint dismissal, and dismissal appeal. Gender-based misconduct complaints also include certain specified rights for both parties, such as supportive measures and informal resolution options, as described in the Gender Based Misconduct and Title IX Policy.
Procedural Rights
In all cases, NYIT will provide for prompt, reliable, and impartial investigation of complaints. The respondent/accused employee is presumed not responsible for the allegations, and the burden is on NYIT—not on the parties—to conduct an investigation that gathers sufficient evidence to determine whether a violation occurred. The standard of proof in these cases is preponderance of the evidence, meaning it is more likely than not that the conduct occurred.
NYIT will treat parties equitably and ensure no bias or conflict of interest exists with those implementing the process. If none exist, the investigator may be the same individual as the decision-maker, in the institution's discretion.
NYIT will take reasonable steps to protect the privacy of the parties and witnesses during its grievance procedures. These steps will not restrict the ability of the parties to obtain and present evidence, including by: speaking to witnesses; consulting with their family members and/or confidential resources; and otherwise preparing for or participating in the grievance procedures.
All persons involved, including complainants, witnesses and accused employees will be accorded adequate procedures as described below to protect their rights to a fair and impartial investigation, including the ability to offer their own evidence and identify relevant witnesses. Any employee may be required to cooperate as needed in an investigation.
Resolution Timeframe
The initial evaluation of reports or complaints will typically occur within 7 business days of receipt. If warranted, NYIT will then initiate an investigation within five (5) business days of the evaluation and confirmation of intent to move forward with the grievance procedure by a reporting party or complainant. NYIT will complete investigations with reasonable promptness, depending upon the complexity of the matter and the number and availability of witnesses, but generally in no more than 60 days.
If a party or witness chooses not to participate in the process or becomes unresponsive, NYIT reserves the right to continue it without their participation to ensure a prompt resolution. Non-participatory or unresponsive parties retain the rights outlined in this policy and in the Gender Based Misconduct and Title IX Policy, where applicable.
NYIT may undertake a short delay in its investigation (several days to a few weeks) if circumstances require. Such circumstances include but are not limited to a request from law enforcement to temporarily delay the investigation (provided it does not conflict with NYIT's obligations under NYS Education Law Article 129-b), the need for language assistance, the absence of parties and/or witnesses, and/or health conditions. NYIT will promptly resume its process as soon as feasible. During such a delay, NYIT will implement and maintain supportive measures for the parties as deemed appropriate.
Initiation of Complaint
Upon receipt of a complaint, Human Resources (or the Title IX Office, where appropriate) will conduct an immediate review of the allegations and will determine if any interim actions are appropriate. If the complaint is oral, the complaint will be documented by NYIT.
If an investigation is initiated, both parties will receive notice of the investigation, which will include:
- Information regarding these grievance procedures and any informal resolution process, if applicable.
- Sufficient information available at the time to allow the parties to respond to the allegations, including the identities of the parties involved in the incident(s), the conduct alleged to constitute discrimination or discriminatory harassment, and the date(s) and location(s) of the alleged incident(s).
- That retaliation is prohibited.
- That the parties are entitled to an equal opportunity to access the relevant and not otherwise impermissible evidence or an accurate description of this evidence.
- That NYIT prohibits knowingly making false statements or knowingly submitting false information during its grievance procedures.
If the investigation is expanded to include new or different allegations than initially noticed, NYIT will notify both parties of the changes.
Assessment and Evaluation of Evidence
NYIT will provide a process that enables the investigator, and decisionmaker where necessary, to question parties and witnesses to adequately assess a party's or witness's credibility to the extent credibility is both in dispute and relevant to evaluating one or more allegations. This means typically the complainant and the accused/respondent will be interviewed as part of the investigation, as well as any witnesses, except in rare circumstances where a party may be unavailable or refuse to be interviewed.
A party whose participation is invited or expected will receive written notice of the date, time, location, participants, and purpose of all meetings or proceedings with sufficient time for the party to prepare to participate. Credibility determinations will not be based on a person's status as a complainant, respondent, or witness.
NYIT will also provide an equal opportunity for the parties to present fact witnesses and other inculpatory and exculpatory evidence that is relevant and not otherwise impermissible, as defined below. NYIT will objectively evaluate such evidence, which may include evidence that is gathered through interviews, documents, and other information provided by the parties.
Permissible and Impermissible Evidence
The following types of evidence, and questions seeking that evidence, are impermissible (i.e. will not be accessed or considered, except to determine whether one of the exceptions below applies; will not be disclosed; and will not otherwise be used), regardless of whether they are relevant:
- Evidence that is protected under a privilege recognized by federal or state law or evidence provided to a confidential employee, unless the person to whom the privilege or confidentiality is owed has voluntarily waived the privilege or confidentiality.
- A party's or witness's records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the party or witness, unless NYIT obtains that party's or witness's voluntary, written consent for use in its grievance procedures.
- For allegations of gender-based misconduct, evidence that relates to the complainant's sexual interests or prior sexual conduct, unless evidence about the prior sexual conduct is offered to prove that someone other than the respondent committed the alleged act, or is evidence about specific prior incidents between the parties offered to prove consent. Prior consensual sexual conduct between the parties does not by itself demonstrate or imply the complainant's consent or preclude determination that sex-based misconduct occurred.
Access to Permissible Evidence
NYIT will review all evidence gathered through the investigation and determine what evidence is relevant and what evidence is impermissible regardless of relevance. NYIT will then provide each party with an equal opportunity to access the evidence that is relevant to the allegations and not otherwise impermissible, in the following manner:
- NYIT will provide an equal opportunity to access an accurate description of the evidence. Upon request of either party, NYIT will also provide equal opportunity to access the evidence itself.
- NYIT will provide a reasonable opportunity to respond to the description of the evidence.
- NYIT will take reasonable steps to prevent and address the parties' unauthorized disclosure of information and evidence obtained solely through these grievance procedures.
Conclusion/Outcome
NYIT will keep parties abreast of the status of the investigation and its anticipated completion, and will notify the parties of the outcome of the investigation within seven (7) business days of its completion.
Upon completion of the investigation, NYIT will determine whether the policy has been violated based upon its evaluation of the information gathered during the investigation as described above. Both parties will be notified within the same reasonable timeframe of the final determination and any appropriate sanctions. The determination regarding responsibility becomes final on the date that NYIT provides the parties with the written notice of outcome.
The notice of outcome to the parties will include:
- A description of the alleged misconduct.
- Information about the policies and procedures that NYIT used to evaluate the allegations.
- The decisionmaker's evaluation of the relevant and not otherwise impermissible evidence and determination whether misconduct occurred.
- When it is determined that a violation occurred, any disciplinary sanctions to be imposed on the respondent.
Sanctions
Any employee found to have engaged in conduct in violation of these policies will be considered to have engaged in employee misconduct. Individuals who violate this policy (which includes supervisory or management personnel who fail to report or knowingly allow violative behavior to continue) will be subject to disciplinary action, from a warning up to and including termination of employment. Sanction ranges for specific gender-based misconduct offenses can be found in the Gender-Based Misconduct and Title IX Policy. Sanctions will not be imposed until completion of the grievance procedure.
For gender-based misconduct, and where indicated, for other forms of discrimination, harassment, or retaliation, NYIT may institute remedies, in addition to disciplinary sanctions. Remedies include any necessary steps to prevent further harassment and to correct its discriminatory effects on the complainant and others, where appropriate. NYIT will provide notice of remedies to impacted parties, and if applicable, to others identified by NYIT who may be experiencing the effects of the same misconduct.
NYIT reserves the right to place a respondent employee on administrative leave pending the completion of the grievance process, subject to compliance with any applicable laws and collective bargaining agreements. Moreover, unless otherwise prohibited by law, nothing shall limit the right of the institution to temporarily remove an employee from job responsibilities, duties, or from the premises in the event that a violent or egregious act is claimed, or if the health and safety of NYIT community members is at risk. However, subject to the foregoing interim measures, NYIT will not institute discipline for respondent for alleged misconduct under this policy until the grievance procedure is finished and a determination has been made that the alleged misconduct was more likely than not to have occurred.
Nothing shall prevent the institution or any of its representatives from reporting criminal or violent acts or threats to civil or law enforcement agencies in order to protect the safety and well-being of members of the NYIT community. Such a report may be made regardless of whether a complaint has been submitted. Individuals who engage in discriminatory or harassing conduct that rises to the level of a violation of law may be subject to personal civil or criminal action, in addition to NYIT's internal process.
If after investigating any complaint of discrimination, discriminatory harassment, or retaliation, the institution determines that knowingly false information has been provided, disciplinary action may be taken against the employee who has knowingly provided false information.
Student-Complainant Grievance Procedure
The provisions in this section will apply only to sex-based allegations against a respondent employee when the complainant's primary status is that of a student, as required by Title IX. The applicable process for student-employees will depend upon whether they were acting in the capacity of a student or an employee at the time of the alleged misconduct.
These rights and procedures will supplement the process described above in the Employee Grievance Procedure, unless otherwise stated.
Notice to be Provided in Student-Complainant Cases
Where a student is the complainant, the following will be added to the notice of allegations and investigation that parties receive under the Employee Grievance Procedure:
- That the respondent is presumed not responsible for the alleged misconduct until a determination is made at the conclusion of the grievance procedures, and that prior to such a determination, the parties will have an opportunity to present relevant and not otherwise impermissible evidence to a trained, impartial decision maker.
- That the parties may have an advisor of their choice who may, but is not required to be an attorney.
- That the parties are entitled to an equal opportunity to access an investigative report (rather than simply a description of the evidence) that accurately summarizes the evidence, and upon request, an equal opportunity to access the relevant and not impermissible evidence upon which the report is based.
Role of Advisors in Student-Complainant Cases
While parties are allowed to have an advisor of their choosing accompany them to any meetings and interviews during the student-complainant process, NYIT does not provide advisors to parties and cannot guarantee equal advisor rights if one party elects to utilize an attorney as their advisor. Parties are generally not permitted to have more than one advisor; however, exceptions may be made on a case by case basis. If the option to have an additional advisor is made available to one party, it will be made available to the other.
Advisors may not provide testimony or speak on behalf of their advisee unless given specific permission to do so. The parties are expected to ask and respond to questions on their own behalf throughout the process. Although the advisor generally may not speak on behalf of their advisee, the advisor may consult with their advisee, either privately as needed, or by conferring or passing notes during any Process meeting or interview. For longer or more involved discussions, the Parties and their Advisors should ask for breaks to allow for private consultation.
Advisors are entitled to the same opportunity as their advisee to access relevant evidence, and/or the same written investigation report that accurately summarizes this evidence. Advisors are expected to maintain the confidentiality of the records shared with them, and may be required to confirm this in writing.
Any advisor who oversteps their role as defined above, who shares information or evidence in a manner inconsistent with institutional policy, or who refuses to comply with NYIT's established rules of decorum will be warned. If the advisor continues to disrupt or otherwise fails to respect the limits of the advisor role, the meeting/interview may be ended, or other appropriate measures implemented, including NYIT requiring the party to use a different advisor.
Questioning Process in Student-Complainant Cases
The investigator will conduct interviews with the parties as part of the investigation, consistent with the process described in the Assessment and Evaluation of Evidence section of the Employee Grievance Procedure.
NYIT will ensure that interviews take place in individual meetings with a party or witness. NYIT will allow each party to propose questions that the party wants asked of any other party or witness, including questions challenging credibility. To facilitate this, NYIT will provide each party with an audio recording or transcript of each interview with enough time for the party to have a reasonable opportunity to propose follow-up questions.
Upon completion of the interviews, the investigator will provide a draft investigation report to the parties and the decision-maker for review and for the posing of additional questions. The investigator will share any party-proposed questions with the decision-maker to ensure all questions are relevant, permissible, and not harassing or unclear, before being posed.
The decision-maker will explain any decision to exclude a party's question. If a question is deemed unclear or harassing, the decision-maker will give an opportunity to clarify or revise such a question. Typically, the investigator will then hold individual meetings with the parties and witnesses to ask the questions posed by the decision-maker, as well as the questions proposed by the parties. However, the decision-maker may conduct such follow-up questioning directly, in their discretion.
The investigator will then incorporate any new, relevant evidence obtained through the parties' review of the draft investigation report, the questioning, and follow-up meetings into a final report. Upon review, the decision-maker may direct a re-opening of the investigation, or may direct or conduct any additional inquiry necessary.
The decision-maker may give less weight or no weight at all to statements by a party or witness who refuses to respond to questions, which are deemed relevant and not impermissible. However, the decision-maker will not draw an inference about whether a violation of policy occurred based solely on such refusal to respond.
Right to Appeal in Student-Complainant Cases
There is no right to appeal a dismissal or determination under the Non-Discrimination Policies and Procedures for Employees, except in cases involving a student complainant and employee respondent. The sole bases for an appeal in those cases are:
- Procedural irregularity that would change the outcome.
- New evidence would change the outcome and that was not reasonably available when the dismissal was made.
- The Title IX Coordinator, investigator, 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.
Parties will be notified of their right to appeal, which must occur within three (3) business days from the Notice of Outcome. If a party appeals, NYIT will:
- Notify the parties in writing of any appeal.
- Implement appeal procedures equally for the parties.
- Ensure that the decision-maker for the appeal did not take part in an investigation of the allegations or dismissal of the complaint.
- Ensure that the decision-maker for the appeal has been trained consistent with the Title IX regulations.
- Communicate to the parties in writing that NYIT will provide the parties a reasonable and equal opportunity to make a statement in support of, or challenging, the outcome.
- Notify the parties in writing of the result of the appeal and the rationale for the result.
In Student-Complainant Procedure cases, the determination regarding responsibility becomes final either on the date that NYIT provides the parties with the written determination of the result of any appeal, or, if no party appeals, the date on which the appeal would no longer be considered timely.
Legal Protections and External Remedies
As described above, discrimination and discriminatory harassment (including retaliation) is not only prohibited by NYIT but is also prohibited by state, federal, and, where applicable, local law. Aside from the internal process at NYIT, employees may also choose to pursue legal remedies with the following governmental entities at any time. Offenders may also be subject to individual liability.
New York State Division of Human Rights (DHR)
DHR enforces the New York State Human Rights Law (HRL), codified as N.Y. Executive Law, art. 15, § 290 et seq., which protects employees, paid or unpaid interns and non-employees regardless of immigration status from unlawful discrimination, harassment or retaliation. The DHR has the power to award relief, which varies but may include requiring an employer to take action to stop the harassment, or redress the damage caused, including paying monetary damages, attorney's fees and civil fines.
DHR's hotline is: 1-800-HARASS-3
NYS Division of Human Rights
One Fordham Plaza, Fourth Floor
Bronx, New York 10458
718.741.8400
dhr.ny.gov
United States Equal Employment Opportunity Commission (EEOC)
The EEOC enforces federal anti-discrimination laws, including Title VII of the 1964 federal Civil Rights Act (codified as 42 U.S.C. § 2000e et seq.). If an employee believes they have been subjected to harassment, the employee can file a "Charge of Discrimination." The EEOC has district, area, and field offices where complaints can be filed. The EEOC does not hold hearings or award relief, but may take other action including pursuing cases in federal court on behalf of complaining parties. Federal courts may award remedies if discrimination is found to have occurred.
The EEOC can be contacted by calling 1.800.669.4000 (1.800.669.6820 TTY), visiting its website at eeoc.gov or via email at info@eeoc.gov.
Local Protections
Many localities also enforce laws protecting individuals from discrimination and discriminatory harassment, including Nassau County and New York City. Employees may be able to file complaints in these localities.
Contact the Local Police Department
If the harassment involves unwanted physical touching, coerced physical confinement or coerced sex acts, the conduct may also constitute a crime. In such cases, employees may contact the local police department or, in an emergency, dial 911.