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ACTION III. NASSAU COMMUNITY COLLEGE SEXUAL HARASSMENT POLICY
PART I. SCOPE, POLICY, AND DEFINITIONS
This policy applies to all members of the Nassau Community College community (hereinafter “College” or “NCC”) and as such all community members may use the procedures set forth herein. However, volunteers and visitors to the College, including but not limited to vendors and service-providers, must abide by the guidelines laid out by this policy.
Consistent with theCollege’s mission to establish and maintain a cooperative work and academic environment withmutual respect for all college students, faculty, and staff, it ensures that the dignity and worth of all members of the institutional community are respected. In keeping with this principle, Nassau Community College affirms its commitment to maintaining an environment free from all forms of exploitation, intimidation, or harassment, including sexual harassment.
Sexual Harassment is demeaning, offensive, illegal, and prohibited by Nassau Community College Policy. Sexual Harassment subverts the mission of the College and undermines the educational process. It creates an atmosphere that is not conducive to learning and productivity. Sexual Harassment will not be tolerated. This includes workplace as well as “peer to peer” (student to student) harassment.
Nassau Community College is committed to all provisions of Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and all other applicable human rights and equal opportunity laws. These laws prohibit discrimination on the basis of sex in employment and within educational programs. Any discrimination and/or sexual harassment hereunder are violations of this Policy.
It is the policy of Nassau Community College that all forms of sexual harassment should be corrected early and firmly in the interest of maintaining a barrier-free working and learning environment. All violations hereunder will be corrected in a timely manner and in accordance with the policy and procedures set forth herein.
NCC is committed to the principle of academic freedom and this policy shall not be interpreted as interfering with that freedom, understanding that the principle of academic freedom is accompanied by a corresponding principle of responsibility.
I-C DEFINITIONS OF SEXUAL HARASSMENT
Sexual harassment is defined under both Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. Prohibited under this policy are:
1. “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, including sexual violence, 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.” (Title VII of the Civil Rights Act of 1964 and its amendments and 29 Code of Federal Regulations, Volume 4, §1604.11);
2. Harassment of students by any community members, by peer to peer and/or employee to employee (including supervisor to subordinate). Sexual harassment may also consist of unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature where grades or educational progress are made contingent upon submission to such conduct, or where the conduct has the purpose or effect of interfering with the individual's academic and/or work performance, or of creating an intimidating, hostile, or offensive educational and/or work environment. (Title IX if the Education Amendments of 1972);
3. Harassment in connection with all academic, educational, extracurricular, athletic, and other programs of the College is prohibited whether on college facilities, on a college van or bus, or during any other College sponsored off-campus activity;
4. Sexual violence is a form of sexual harassment and is strictly prohibited under law and under this policy. Sexual violence involves physical acts and/or sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to his/her age, use of drugs or alcohol, or due to a mental and/or physical disability whether permanent or temporary in nature. Sexual violence includes but is not limited to: rape, sexual assault, sexual battery, and sexual coercion; and
5. Sexual harassment can also include, but is not limited to, such actions as:
- Sex-oriented humor or abuse that includes derogatory or dehumanizing gender references;
- Physical contact such as patting, pinching, or frequently and intentionally brushing against another's body.
- Subtle or overt pressure for sexual activity.
- Preferential treatment or suggestions of preferential treatment conditioned on submitting to sexual conduct (often referred to as “quid pro quo” harassment)
- Use of e-mail, cell-phones, electronic messaging and/or computer dissemination of sexually oriented, sex-based communication with intent to harass, threaten or alarm another person.
Sexual harassment may consist of repeated actions or may arise from a single incident if sufficiently severe. What constitutes sexual harassment under this policy will be decided on a case-by-case basis and depends on the specific facts and the context in which the conduct occurs. Some conduct may be inappropriate, unprofessional and/or subject to disciplinary action, but might not fall under the definition of sexual harassment. The specific action taken, if any, depends on the nature and gravity of the reported conduct.
I-D CONSENSUAL RELATIONSHIPS
Consenting romantic and sexual relationships between a College employee and student or between two College employees, including supervisor-employee relationships, while not expressly forbidden, are discouraged. These relationships carry an inherent risk when they occur between instructor and student or between supervisor and subordinate due to the perceived or actual inequality of power and influence between the participants. As such, it is incumbent upon those with authority not to abuse, nor to seem to abuse, the power with which they are entrusted. Individuals engaging in such conduct understand they risk opening themselves up to a charge of sexual harassment.
PART II. FUNCTIONS AND DUTIES OF EMPLOYEES
Part II of this policy sets out the functions and duties of employees designated to receive complaints, handle investigations, counsel complainants and seek resolution along with the general responsibilities of all College employees to create a harassment free environment.
II-A COMPLAINANT RESOURCES
1. Affirmative Action Officer
The College’s Affirmative Action Officer (hereafter “AAO”) shall serve as the Title IX Coordinator and the Chief Investigative Officer for the purposes of pursuing informal and formal resolution of complaints. The AAO is responsible for educating College personnel and students regarding their responsibilities and rights under this policy and under federal and state regulations. The AAO shall collaborate with all appropriate constituents, including the Academic Senate and its committees, in accordance with the College commitment to shared governance, labor agreements and federal standards for Title IX Coordinator. Appendix A details the specific responsibilities of the Affirmative Action Officer.
2. Designated Investigative Officer
The College President shall appoint a member of the administration or faculty as a Designated Investigative Officer (DIO) to serve as called upon by the AAO or another member of the college community. When called upon, the DIO shall have the responsibilities of the AAO as it relates to hearing complaints brought by students or college personnel, ensuring that complainants and the accused are informed of their options under this policy, and conducting an investigation under the supervision of the AAO (except when the AAO, the College President, or a member of the Board of Trustees is the subject of investigation. Appendix A details the specific responsibilities of the Designated Investigative Officer.
3. Designated Sexual Harassment Counselors
The AAO office shall maintain a list of qualified Designated Sexual Harassment Counselors (hereinafter referred to as the “List” and “Designated Counselors” or “DC” respectively) The Student Personnel Services chairperson, with the advice and consent of that Department’s P & B Committee, shall submit the names of Student Personnel Services’ full-time faculty with sexual harassment counseling credentials to the AAO. Other full-time faculty or Administrators who wish to serve in this capacity and who have the required credentials as determined by Student Personnel Services may be included on the List. Final approval of all appointees to the List rests with the College President in consultation with the AAO.
The College shall, as needed, provide sexual harassment training for the Designated Counselors.
- shall provide education and counseling support, as appropriate, to members of the college community seeking information and/or help with sexual harassment issues;
- ay act as facilitators on behalf of the complainant;
- shall inform complainants of their options under the sexual harassment policy;
- shall offer supportive counseling;
- shall assist complainants throughout their decision-making process and in the resolution of the complainants' concerns;
- if so requested by the complainants, shall accompany complainants to meetings arranged by the AAO or DIO;
- shall submit a Situation Report of all alleged incidents of sexual harassment to the AAO.
4. Reporting Responsibilities of Employees
To facilitate the reporting of sexual harassment complaints and eliminate alleged harassment as soon as possible, the College recognizes that training needs to be provided to certain College employees likely to witness or receive reports of sexual harassment and sexual violence. The College will offer such training to faculty, public safety employees, Department Chairs, College administrators, counselors, College attorneys, health personnel, and CSEA supervisors. Such training will ensure that the above-referenced employees:
a. know how to direct the report of harassment to the appropriate College officials; and
b. have practical information about how to identify potential and/or alleged sexual harassment and violence
To the extent permitted by law, these individuals must report all allegations, reports and incidents of sexual harassment that come to their attention by filing a Situation Report with the AAO. All such reports must be filed no later than forty-five (45) working days from the date the complaint was received or such incident(s) came to their attention. However, in allegations involving actual or threatened physical violence, the reporting employees listed just above in II-A(4) must file the report with Public Safety promptlyupon hearing of the alleged incident.
II-B THIRD PARTY COMPLAINTS
Any College employee, other than those mentioned above in II-A(4),who reasonably believes that sexual harassment may have occurred may report it to the AAO or DIO. Additionally, any persons not members of the College Community who reasonably believe that sexual harassment has occurred may report it to the AAO, DIO, or Public Safety.
II-C REPORTING CIRCUMSTANCES
Three reporting circumstances exist: Circumstance 1, where the complainant wishes to remain anonymous and will not go forward with a complaint; Circumstance 2, where the complainant wishes to seek a remedy/resolution to the Complaint; and Circumstance 3, where there is no active complainant but the College has become aware of an alleged or credible possibility of an incident of sexual harassment.
1. Circumstance 1: The complainant wishes to remain anonymous and will not file a Complaint.
Where the complainant is a College employee or student, the AAO, DIO or DC must explain to the complainant at the first meeting his/her rights and options under this Policy as well as the Time Limitations for filing a Complaint under this Policy. If the complainant still does not wish to file a Complaint, the AAO, DIO, or DC will file a Situation Report, which will be filed and maintained by the AAO. If the complainant has met with other individuals having “Reporting Responsibilities” [section IIA(4) above], that individual will advise the complainant to the extent outlined there. The employee with “Reporting Responsibility” will file a Situation Report with the AAO.
2. Circumstance 2: The complainant wishes to file a Complaint
Where the complainant is a College employee or Student and has decided to file a Complaint for a Stage 1, 2 or 3 procedure, the AAO, DIO or DC must explain to the complainant at the first meeting her/his rights and options under this policy, the time limitations for filing a Complaint, and the Complaint procedure under this Policy. If the complainant has not met with the AAO, DIO or a DC but has met with another individual with “Reporting Responsibilities” [section IIA(4) above], that individual will advise the complainant and direct the Complainant to the AAO to file a formal Complaint as well as file a Situation Report with the AAO.
3. Circumstance 3:
If the AAO, DIO or DC becomes aware of a credible anonymous allegation of sexual harassment, sexual violence or a threat of such harassment or sexual violence, a Situation Report must be filed and the AAO must institute an investigation.
II-D COMPLAINT AND INFORMATIONAL FORMS
The College has developed the documents listed below in order to prevent, investigate and resolve incidents of sexual harassment within the College community:
- Situation Reports: A Situation Report is a written document that describes a set of circumstances reported to the AAO or DIO involving allegations of sexual harassment. Filed with the Affirmative Action Officer, it will be maintained in the Affirmative Action Office for a minimum of six (6) years. Situation Reports cannot, in the absence of a Complaint, be used to initiate disciplinary action. However, in the event a formal proceeding is initiated such report(s) may become part of an active case.The AAO will use his/her judgment as to whether or not to notify the Department Chair of a Situation Report. The AAO will notify the person in question at the appropriate time as determined by the AAO’s judgment. That person has the option to submit a written rebuttal within ten days and have that document attached to the Situation Report.
- Complaint Form: A Complaint Form must be completed to formally institute a Stage 1, 2 and 3 proceeding. All Complaints must be signed by the complainant and the AAO or DIO and dated. Complaint forms are to be filled out in the Affirmative Action office in the presence of the Affirmative Action Officer, and the original is kept in that Office..
II-E TIME LIMITATIONS
College Employees have forty-five (45) working days from the last alleged incident of sexual harassment to make a complaint hereunder. Students have forty-five (45) working days from the last alleged incident of sexual harassment or forty-five (45) working days from the last official date to submit grades to the Registrar to make a Complaint hereunder.
The Time Limitation (for Employees and Students) is deemed tolled (suspended) on the first day the Complainant speaks to any of the individuals listed in this Policy under II-A for five (5) working days. After that the forty-five (45) day time limit commences to run again except when the Complainant is obtaining on-going counseling from a DC. When the Complainant is receiving on-going counseling from a DC, the Time Limitation to institute a Complaint under Part III is tolled (suspended) for ten (10) working days from the date the Complainant first reported the incident to the DC and then commences to run again.
The Designated Counselors, those with “Reporting Responsibilities (II-A(4)), AAO and DIO are not obligated to elicit names or include names in the Situation Report where the Complainant has requested anonymity. If names are known, the reporting employee will consider the complainant’s wishes as to whether or not to include them in the report. However, where the allegation alleges sexual violence or the threat of sexual violence, then the Situation Report must include names where these are known.
Every possible effort will be made to maintain the confidentiality of the Complainant and Respondent. However, absolute confidentiality cannot be guaranteed.
PART III. COMPLAINT AND RESOLUTION PROCEDURES
Part III of this policy sets out the complaint procedure for the enforcement of this policy. There are two types of procedures: Informal and Formal. The latter is comprised of three stages. Allegations involving sexual assault cannot be resolved using Stage 1 or Stage 2, but must commence at Stage 3.
There are instances where the complainant does not wish to file a Complaint or seek a formal resolution but prefers to informally resolve the problem.
Where the complainant has discussed the matter with the AAO, DIO or DC or any College community member with “Reporting Responsibilities,” that individual will proceed as required in II-C.1. Where a Situation Report is filed it may not be used as the basis for any further disciplinary action or investigation and may not be put into a personnel and/or student file.
The complainant and/or Respondent are not obligated to further inform the above-referenced third parties of a resolution, if any, to the alleged complaint.
The use of an Informal Resolution does not preclude the complainant from seeking further redress under III-B provided a formal complaint is made within the Time Limitation prescribed in II-E.
This policy provides for three stages for the resolution of allegations of sexual harassment:
Stage 1: Conciliation
Stage 2: Mediation
Stage 3: Formal Hearing
III-C INITIATING A COMPLAINT
A signed Complaint form must be filed with the AAO or DIO in a timely manner (as prescribed hereunder in II-E “Time Limits”).
Complainants have the option of initiating Stage 1, 2 or 3 procedures except where the Complaint alleges sexual assault. Such cases are automatically the subject of a Stage 3 procedure. The College will pursue a Stage 3 investigation and procedure even when the complainant chooses to pursue other legal remedies and/or where other criminal agencies are involved.
III-D RESOLUTION PROCEDURES
III-D.1 STAGE 1: Conciliation
Most complaints are best resolved by the use of Stage 1 and the College urges all Complainants, whenever feasible, to use this stage. While it is referred to as Conciliation, this procedure and its outcome are considered official. During Stage 1 the Complainant must meet with the DC and file with the AAO a signed Complaint outlining the harassment allegations (where there already exists a Situation Report on the incident the DC will append the complaint to that Situation Report).
At this stage, the Complainant may decide, among other options, to resolve the situation individually, or to request that the DC speak to the Respondent on his/her behalf, and/or to request that the DC accompany him/her to meeting(s) with the Respondent. The AAO will be informed of the outcome of that meeting(s) and will add that resolution to the Situation Report. The resolution of a Stage 1 complaint (including the Situation Report) will not be sent to a college employee’s personnel file or to a student file nor be the basis for any further discipline arising from the Complaint.
Any subsequent investigation of a sexual harassment complaint of sexual harassment involving the same Respondent may take into consideration information gathered from the first incident provided the subsequent incident occurs no more than six (6) years following the first incident.
At any time before the meeting the Complainant may decide to terminate such a meeting and proceed to Stage 2 or 3.
III-D.2 STAGE 2: Mediation
Mediation is conducted by either the AAO or DIO (to be selected by the Complainant). The AAO or DIO shall attempt to facilitate/mediate a resolution of the alleged incident through meetings with all parties. The Respondent has the option of asking for a representative of his/her bargaining unit to attend any meetings as an observer.
The Complainant and Respondent need not meet together unless both parties agree. All parties will be given the opportunity to fully respond to all allegations. Every effort shall be made to ensure confidentiality. The Complainant and the Respondent may each be accompanied by up to two (2) observers.
The AAO will be informed of the outcome of the meeting(s) and will add that resolution to the Situation Report. The resolution of a Stage 2 Complaint (including the Situation Report) will not be sent to a college employee’s personnel file or to a Student file nor be the basis for any further discipline arising from the Complaint.
Any subsequent investigation of a sexual harassment complaint involving the same Respondent may take into consideration information gathered from the first incident provided the subsequent incident occurs no more than six (6) years following the first incident.
III-D.3 STAGE 3: Formal Hearing
Formal Stage 3 complaints shall be filed on a signed, written and dated Complaint form provided by the AAO or DIO and signed in the presence of the AAO or DIO. Within seven (7) working days of receipt of the signed Complaint from the Complainant, the Respondent shall be notified that the Complaint has been filed. Within one working day of receipt of the signed complainant from the Complainant, his/her Chair or Supervisor and the Respondent’s union where applicable will be advised of the pending Complaint.
Within ten (10) working days from the receipt of the Signed Complaint the AAO or DIO (hereinafter known as “Investigator”) will conduct a formal investigation, which will include but not be limited to:
a. A review of all applicable materials, including any past Situation Reports concerning the Respondent. Parties may choose to provide materials to the Investigator;
b. Interviews with any known witnesses, including witnesses provided by the parties to the proceeding; and
c. Interview with the Complainant and Respondent. Complainant and Respondent may choose to have up to two (2) individuals of their choice (including attorneys and union representatives) present during such interviews. Every opportunity will be provided to Complainant to present evidence to prove that it was “more likely than not” that the harassment occurred. Every opportunity will be provided to the Respondent to present exculpatory evidence.
The Respondent and Complainant and their union representatives and attorneys will each be afforded the opportunity to see all the evidence, including but not limited to, documentation of the investigation, all written, oral and audio or video recordings collected by the AAO or DIO during the course of his/her investigation. Parties must be given the opportunity to respond to that evidence.
All fact-finding investigations shall be consistent with the Equal Employment Opportunity Commission’s and the Department of Education’s guidelines involving allegations of Sexual Harassment. All evidence must be maintained and preserved.
At all stages of the investigation, both the Complainant and the Respondent may be accompanied by up to two (2) observers, including attorneys and union representatives, who can represent the Complainant and Respondent at their option.
The Investigator will maintain the confidentiality of all Parties involved to the extent feasible.
The investigation must be completed within forty-five (45) working days from the date of the formal Complaint unless one of the parties to the Complaint is either a student or faculty and the Complaint was filed in a manner that the investigation would have to wholly or partly be conducted during a College break. Any such break will toll (suspend) the time for the investigation’s completion. The time for its completion will begin to run again on the first day the College is officially back in session.
Upon conclusion of the investigation, the investigator has seven (7) working days to write a report and send it to the College President. That report must include:
d. A finding of whether the allegations were warranted or not applying a preponderance of the evidence (“more likely than not”) standard that sexual harassment or violence occurred;
e. A recommendation for a negotiated resolution if appropriate; and/or.
f. imposing of the sanction if warranted, which may include a recommendation for further disciplinary action.
On the same day the written report is sent to the College President it will be sent to all parties.
A summary of the report shall be sent to the Respondent’s personnel file or if a student to the student’s file once it is finalized after Presidential action and/or resolution of any appeal.
In the event the Affirmative Action Officer (or DIO) renders a finding that imposes sanctions, as stated above, then the issuance of sanctions shall be in accordance with the following procedure:
For employees covered by collective bargaining agreements, the issuance of sanctions shall be in accordance with disciplinary procedures under the appropriate collective bargaining agreement. For all others, the imposition of sanctions shall be in accordance with disciplinary procedures under the applicable College policy.
Sanctions may include, but are not limited to:
- Verbal warning
- Written Reprimand
- May include restriction of campus activities, counseling, community service, and monitoring of behavior for a period of time.
- From school or work for a time period no less than five (5) consecutive business days, and no more than two (2) consecutive academic semesters.
- Complete and permanent removal from the college community.
III-D.5: Petition For Appeal
Either party may bring a petition for an appeal of the decision made by the Affirmative Action Officer within seven (7) business days. A Petition for Appeal shall be made in writing to the College President and shall be hand delivered to the Affirmative Action Officer. If the Complaint is against the College President or a member of the Board of Trustees, the Petition for Appeal will be made to the Chair of the Board of Trustees (or to the Chair of the Board Personnel/Affirmative Action Committee if the respondent is the Chair of the Board of Trustees) and hand delivered to the Affirmative Action Officer.
III-D 5.1: APPEAL JUSTIFICATIONS
The President has ten (10) business days to grant or deny a petition for appeal. The President’s decision to grant the petition for appeal shall be based on reasonable justification, which may include, but is not limited to:
- Lack of fairness and/or due process during the complaint and investigative process
- The availability of new evidence that was not available during the Affirmative Action Officer’s investigation
If the President denies the petition for appeal, he/she shall notify both parties.
The Chair of the Board of Trustees (or Board Personnel/Affirmative Action Committee as stated in IIID5 above) shall substitute for the College President if the complaint is against that President or a member of the Board of Trustees in this section and in section IIID5.2 below.
III-D 5.2: APPEAL PROCESS
If the President grants a petition for appeal, he will convene the Sexual Harassment Appeal Board and notify both parties.
The Sexual Harassment Appeal Board shall:
Interview the Affirmative Action Officer, review the petition, review the Affirmative Action Officer‘s investigation reports, and may interview witnesses. Both parties have the right to submit a written statement to the Appeal Board.
The Sexual Harassment Appeal Board may overturn the Affirmative Action Officer’s decision or do one of the following:
- Reduce the severity of the sanction
- Increase the severity of the sanction
- Uphold the Affirmative Action Officer’s decisions
The Sexual Harassment Appeal Board has ten (10) business days to review the case and to render a decision. If the deadline is not met, the Affirmative Action Officer’s decision shall be final.
III-D 5.3: THE SEXUAL HARASSMENT APPEAL BOARD
There shall be a three-person Sexual Harassment Appeal Board, one member to be selected by the College Administration, one member selected by the appropriate Union, and both shall choose a third member. If a student is a respondent or complainant, the third member shall be chosen from the Sexual Harassment Education Subcommittee of the Academic Senate Affirmative Action Committee. The Appeal Board members plus alternates will serve for a staggered two year term. All Appeal Board members are required to go through training provided by the NCC administration at the beginning of his/her two year term, and cannot serve on the Appeal Board without completing this required training.
III-D 5.4: OPTIONS FOLLOWING APPEAL BOARD ACTION
In the event that one of the parties does not accept the Appeal Board's decision, the following options for recourse are available:
- In the case of a student or a non-bargaining unit employee, a complaint can be filed with an appropriate federal, state and/or County agency or agencies, such as the Equal Employment Opportunity Commission, New York State Division of Human Rights, United States Commission on Civil Rights, or Nassau County Commission on Human Rights.
- In the case of a College employee, a grievance can be filed in accordance with the appropriate Collective Bargaining Agreement.
IV MISCELLANEOUS PROVISIONS
IV-A OTHER REMEDIES
Nothing herein prevents a Complainant from filing a complaint with the appropriate local, state or federal agency. In the event that the allegation concerns a criminal act, the Complainant may (if he/she has not done so already) file a criminal complaint with the appropriate local, state or federal authorities. Such complaint may be filed by the Complainant at any time and does not need to await a resolution of the college proceedings described in this policy.
IV-B FRIVOLOUS OR MALICIOUS CHARGES
This policy shall not be used to bring frivolous or malicious charges against students or employees. Disciplinary action under the Student Code of Conduct or the appropriate personnel policies concerning personal misconduct may be taken against any person bringing a charge of sexual harassment in bad faith.
IV-C RETENTION OF DOCUMENTS
In accordance with the requirements of the State of New York Archives and Records Administration, the Affirmative Action Officer must retain the records acquired during the investigation (regardless of outcome) for up to six (6) years from the termination of the investigation.
IV-D RETALIATION PROHIBITED
No one presenting a complaint or allegation of sexual harassment or testifying in such a proceeding and/or investigation may be subject to reprisal or retaliation of any kind. Violations are subject to the appropriate disciplinary action.
All notices referred to in this policy shall be in writing and delivered via the U.S Postal Service with the exception of the petition for appeal (IIID5), which must be hand delivered to the Affirmative Action Officer and signed for by the AAO or his office designee.
IV-F INTERPRETATION OF POLICY
This policy shall be interpreted to comply with all applicable federal, State and local laws and regulations.
I. Investigative Functions and Duties of the Affirmative Action Officer
- Receiving and or making Situation Reports and Complaints and maintaining these records on file;
- Hearing complaints brought by students or employees of the College;
- Ensuring that Complainants and Respondents are informed of their rights and options under this Policy;
- Mediating between the parties;
- Facilitating the filing of complaints;
- Conducting an investigation subsequent to the filing;
- Maintaining time logs of the investigations;
- Reporting the findings to the President of the College;
- Collecting statistics on sexual harassment incidents;
- Preparing an annual report for the College community that shall include statistics, educational initiatives, overall monitoring efforts, and other activities. The report will be made available to the President's Cabinet, Academic Senate Executive Committee, the Academic Senate Affirmative Action Committee, and all other interested parties. This report will maintain the confidentiality of all parties;
- Maintaining a list of approved Designated Sexual Harassment Counselors;
- Educating College personnel regarding their responsibilities and rights under this policy and under federal regulations, and working with the Academic Senate Affirmative Action Committee to educate and inform the College community about sexual harassment policies and issues;
- Handling complaints, investigating, and following the procedures of this Policy should the subject of a complaint of sexual harassment be the College President or a member of the College Board of Trustees.
II. Investigative Functions and Duties of the DIO
- Hearing complaints brought by students or employees of the College;
- Ensuring that complainants are informed of their options under this policy;
- Mediating between the parties;
- Facilitating the filing of complaints;
- Conducting an investigation subsequent to the filing;
- Maintaining time logs and reporting thereon to the AAO; and
- Reporting the findings to the College President.
The DIO shall be appropriately trained to carry out these duties.
Nassau Community College Policy Against Sexual Harassment Brochure: This brochure will be distributed to all new faculty and staff, and electronically to incoming students at the start of each semester. Hard copies will also be made available in the offices of the Chair of Student Personnel Services, the Women's Center, Student Activities, Designated Counselors, Departmental Chairs, Public Safety, Academic Advisement, and the College Library.
Individuals who file a Complaint with the College do not lose their right to pursue other remedies with the New York State Division of Rights, the Office for Civil Rights, Nassau County Human Rights Commission, or the Nassau County Police Department. In addition, sexual harassment may also rise to the level of a criminal offense as defined in Article 130 of the New York State Penal Code, and offenders may be subject to criminal prosecution regardless of any other remedies sought and implemented.
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ACTION IV. NCC POLICY STATEMENT WITH RESPECT TO BIAS & DISCRIMINATION
The mission of Nassau Community College as defined in the New York State Education Law is "to provide educational services of the highest quality, with the broadest possible access, fully representative of all segments of the population, in a complete range of academic, professional and post secondary programs including such additional activities in pursuit of these objectives as are necessary or customary." The College's commitment to a full representation of all segments of the population has resulted in a campus community of great and growing diversity. This heterogeneity itself is one of the College's most valuable learning resources. It provides exposure to a variety of ideas and experiences, as people of all races, cultures, religions, lifestyles and ideologies meet and share in the scholarly work and the life experiences that the College offers.
Nassau Community College is a broadly diversified institution, committed to recognizing diversity and pluralism of values and beliefs on campus. The College condemns bias and all other acts of hatred and violence. Furthermore, the College condemns all evils of bigotry, discrimination, harassment, physical violence and abuse.
Nassau Community College is committed to the maintenance and preservation of a community environment in which respect for the dignity and worth of each individual is demonstrated, and where diversity and the free exchange of ideas can flourish. The preservation of that community requires its members to maintain a high level of sensitivity and awareness regarding issues of discrimination and the recognition of individual human rights. The preservation of that community necessitates a behavior that enhances cooperation among groups and encourages the development of each person as a unique individual. Behavior that creates division among people destroys the community.
There are already established federal and state laws and regulations and University policies prohibiting discrimination based on race, ethnicity, religion, sex, national origin, disability and sexual orientation to which the College and the surrounding community adheres. Various procedures are in place for the expeditious review and effective resolution of allegations of prohibited behavior.
The College recognizes that racist, sexist, anti-religious and homophobic incidents continue to increase across our nation, notwithstanding existing policies against them and despite the many recent measures and statements deploring bias-related behavior that have been issued by campus presidents, organizations, and committees.
A university is a place in which ideas are constantly introduced, examined, evaluated, refined and absorbed, or rejected. Ideas, some of them contradictory, some repugnant, but, it is hoped, all stimulating and respected, constitute the daily environment of a learning community. It is appropriate, therefore, to reaffirm the College's dedication to both freedom of discourse and freedom from unlawful discrimination and to declare that these are not contradictory values but complementary rights. Ideas, values, and lifestyles should be freely and openly discussed, allowing opportunity for all sides to be heard and considered. At the same time, safety of person and of property must be upheld by, and for, each member of the community, for there can be no free discourse in an atmosphere of intimidation.
Giving recognition to constitutional guarantees of freedom of expression, including the right to express views, opinions, and beliefs that some may find offensive, Nassau Community College, in its policies and actions, and in accord with appropriate statutes and applicable judicial precedents, will make every effort to encourage free speech as protected by the U.S. Constitution. It will discourage the use of hostile, intimidating or abusive language. We, as a campus community agree name calling and engaging in personal vilification inhibit rather than effect the open dialogue which we seek.
There are many other acts that are committed and statements made unconsciously, through ignorance or insensitivity, which are also destructive to the climate necessary for the free and open exchange of ideas and which are much more difficult to eliminate. No one, particularly at a public institution in the State of New York, should be expected to function in an atmosphere of insult. Everyone in the campus community, therefore, must assume the responsibility - - a responsibility exercised through personal action - - for a bias-free environment. Deploring insensitivity is easy; changing the environment, however, occurs step by step through conscious acts of good will.
Each member of the campus community has the power to change some aspect of the prevailing climate. The recognition that bigotry and hatred exist must be the starting point, for denial and complacency are part of the problem. Awareness, and action, both individual and institutional, are the solutions. All campus constituencies are therefore asked to join in the effort to make a reality of the individual's rights protected by the federal, state and local governments and by the rules, regulations and existing policies of Nassau Community College.
Approved by the Academic Senate
Affirmative Action Committee - 2/26/91
Approved by Academic Senate - 4/28/91
Approved by Board of Trustees - 5/14/91
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ACTION V. MEMORANDUM IN SUPPORT OF THE COMPLAINT PROCEDURES
FOR REVIEW OF ALLEGATIONS OF DISCRIMINATION/HARASSMENT
Title VI of the Civil Rights Act of 1964 protects people from discrimination based on race, color, or national origin in programs or activities that receive Federal financial assistance. The United States Department of Education has issued investigative guidance regarding racial incidents and harassment of students at educational institutions in accordance with Title VI, Civil Rights Act of 1964 and its implementing regulation (34 CFR Part 100).
The Investigative Guidance (59 Federal Register 11448 3/10/4) strongly recommends appropriate campus grievance procedures. Colleges should have an anti-discrimination policy with grievance procedures in place. The grievance procedures may include provisions such as: (1) complaint procedures, (2) grievance procedures, (3) implementation of racial awareness training, and (4) counseling provisions for victims of racial harassment.
Nassau Community College has had a long-standing policy statement with regard to bias, discrimination and academic freedom. The policy was approved by the Academic Senate Affirmative Action Committee on February 26, 1991, approved by the Academic Senate on April 28, 1991, and adopted by the College's Board of Trustees on May 14, 1991. The proposed procedures complement existing policy.
The attached procedures are an outgrowth of recommendations made by the United States Department of Education's Office of Civil Rights and over two years of negotiations and meetings with the Academic Senate Affirmative Action Subcommittee on Bias and Discrimination. They enforce the College's concerns and needs regarding our responsibilities to comply with both applicable civil rights laws and the First Amendment to the United States Constitution.
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ACTION VI. NASSAU COMMUNITY COLLEGE'S COMPLAINT PROCEDURES REVIEW OF ALLEGATIONS OF DISCRIMINATION/HARASSMENT
The goals, vision, and type of environment that Nassau Community College is attempting to create embody a broadly diversified institution committed to recognizing diversity and pluralism of values and beliefs on campus. The College condemns bias and all other acts of hatred and violence. The goal of this policy is to educate, sensitize, and increase the awareness of the campus community to allegations of discrimination/harassment, disability, age, sex, or sexual orientation.
Discrimination/harassment on the basis of race, color, national origin, disability, age, sex, or sexual orientation, (see below) denies students the right to an education free of discrimination, and employees the right to a work place free of discrimination. Nassau Community College students and employees should not be treated differently because of their race, color or national origin, disability, age, sex, or sexual orientation.
This policy covers discrimination/harassment on the basis of race, religion, national origin, disability, age, sex or sexual orientation. Nassau Community College is responsible for providing a nondiscriminatory environment that is conducive to learning.
A discriminatory environment is defined as one in which misconduct on the basis of race, color, national origin, disability, age, sex, or sexual orientation, (e.g., physical, verbal, graphic elements) is sufficiently severe, pervasive or persistent so as to interfere with an individual's ability to participate in or benefit from the services, activities and privileges offered by the College. To determine if a discriminatory/harassment environment exists, it must be determined if the discrimination/harassment is severe, pervasive or persistent.
The Investigative Guidance (59 Federal Register 11448 3/10/94) strongly recommends appropriate campus grievance procedures. Colleges should have an anti-discrimination policy with grievance procedures in place. The grievance procedures may include provisions such as (1) complaint procedures, (2) grievance procedures, (3) implementation of awareness training, and (4) counseling provisions for victims of discrimination/harassment. Nassau Community College, in its continuing effort to seek equity in education and employment, and in support of Federal and state anti-discrimination legislation, establishes and hereby adopts a complaint procedure for the prompt and equitable investigation and resolution of allegations of unlawful discrimination on the basis of race, color, national origin, U.S. Civil Rights Act of 1964, Title 6, Title 7, EEOC; religion, Human Rights Act; age, Age Discrimination in Employment Act, 1967; Age Discrimination Act of 1975; sex, sexual orientation, including marital status (covered by State Executive Order) U.S. Civil Rights Restoration Act of 1987, Title 9, Education Amendments, 1972; disability Americans With Disabilities Act and Section 504, Rehabilitation Act of 1973; status as a disabled or Vietnam era veteran, Section 402, Vietnam Veterans Readjustment Assistance Act, 1974.
This proposed procedure for the Review of Allegations of Discrimination, which may be utilized by any student or employee, is not intended to supplant or duplicate any already existing collective bargaining agreement grievance procedure(s), including the informal resolution process in practice on campus. Employee grievance procedures established through negotiated contracts, academic grievances review committee, student disciplinary grievance board(s), and any other procedure(s) defined by contract will continue to operate as before. Neither does this procedure, in any way, deprive a complainant of the right to file NCC Collective Bargaining Agreements and cannot preempt Federal Law with an outside enforcement agency, such as the Nassau County Human Rights Commission, New York State Division of Human Rights, the U.S. Equal Employment Opportunity Commission, the U.S. Office for Civil Rights of the Department of Education, the Office of Federal Contract Compliance Programs of the U.S. Department of Labor, and the Office of the Americans with Disabilities Act, Civil Rights Division, of the U.S. Department of Justice.
This procedure provides an additional mechanism through which the College may identify and eliminate incidents of illegal discrimination. The College recognizes and accepts its responsibility in this regard and believes that the establishment of this internal, non-adversarial grievance process will benefit students, faculty, staff and administration alike, permitting investigation and resolution of problems without resort to the frequently expensive and time-consuming procedures of local, state and Federal enforcement agencies or courts. It is urged and encouraged that all complainants who wish to use this policy first speak with the Academic Department Chairperson, Department Supervisor, or Dean of Students, in the event of a complaint involving a member of the campus community. The Affirmative Action Officer is the official discrimination complaint receiver for the College (see NCC Affirmative Actions/Equal Employment Handbook).
Procedures for Processing Complaints
1. If the complainant wishes to, the complainant may first speak with the respondent, and/or Department Chairperson, or Supervisor in an attempt to resolve the complaint informally. When appropriate, and at the request of the Chairperson, and/or the area Vice President, the Affirmative Action Officer will meet with the complainant and the Department Chairperson/Supervisor to try to resolve the complaint informally. The Department Chairperson/Supervisor will contact and meet with the faculty member/college employee to discuss the situation. If the situation is resolved, the matter ends. No further action is necessary.
2. The Chairperson/Supervisor, or the Departmental Personnel and Budget (P&B) Committee (depending on contractual confines), upon review, may send a memo reporting the outcome to the Affirmative Action Officer, or send a memo reporting the outcome to the faculty member/employee's personnel file. If either party is dissatisfied, then the Dean of Instruction's Office shall be informed of the situation when a faculty member is involved. The Dean of Students Office, Supervisor or appropriate Administrator shall also be informed of the situation when students or College employees are involved. No formal charges shall take effect against a faculty member, or employee, unless the appropriate Collective Bargaining Agreement procedure is utilized. If the complainant is not satisfied with the results of Step 2, the complainant may utilize Step 3 of this policy.
3. The Affirmative Action Officer shall seek to resolve the complaint, if the complaint cannot be resolved with the Department Chairperson or Supervisor. When appropriate, the Affirmative Action Officer will meet with the Department Chairperson/Supervisor to try and resolve the complaint. The Affirmative Action Officer shall have the right to all relevant information and to interview witnesses, as well as the right to bring together the complainant and respondent, if desirable to all parties. If a resolution satisfactory to both complainant and respondent is reached within 14 working days (from the beginning of Step #3) through the efforts of the Affirmative Action Officer, the officer shall close the case, sending a written notice to that effect to the complainant and respondent. The written notice, a copy of which shall be attached to the original complaint form in the officer's file, shall indicate the agreement reached by complainant and respondent and shall be signed and dated by the complainant, the respondent and the Affirmative Action Officer. The Affirmative Action Officer is the discrimination complaint receiver for the College. All cases are to be referred to the College's Affirmative Action Office after Step #2. (Matters of a criminal nature are to be referred immediately to the Campus Security Office.)
4. Student Personnel Services Counselors shall provide education and counseling support, as appropriate, to members of the college community seeking information and/or help with discrimination issues. The counselors shall inform complainants of their options under this policy throughout their decision-making process in the resolution of the complainants' concerns. Student Personnel Service Counselors may accompany the complainant(s) to meetings arranged by the Affirmative Action Office, if so requested by the complainant(s). Student Personnel Service Counselors may lend support, but may not act as legal counsel.
5. If the Affirmative Action Officer is unable to resolve the complaint to the mutual satisfaction of the complainant and respondent within 14 working days, the officer shall so notify the complainant, advising him or her of the right to proceed to the next step internally (see number 6 below), or to file a Charge of Alleged Discrimination with the appropriate external enforcement agencies immediately. The respondent should be notified as to the outcome.
6. If a formal grievance is filed with a County, state or Federal agency, or a court action is filed by the complainant, any internal investigation or review under way on the same complaint at Nassau Community College will terminate without conclusion.
7. If the complainant chooses not to proceed through the external process, but seeks further action on the part of the College, the complainant shall notify the Affirmative Action Officer.
8. The complainant's statement, together with the Affirmative Action Officer's findings, and a statement from the Affirmative Action Officer indicating that informal/formal resolution(s) were not possible, shall be forwarded to the College President within five working days. All parties shall be notified of the outcome.
9. If appropriate, within seven working days after receipt of the Affirmative Action Officer's (AAO) findings, the College President shall communicate to the complainant, the respondent, the AAO and Department Chairperson/Supervisor, whether or not, based on the AAO's findings, there is just cause to warrant a determination that discrimination has occurred and, if appropriate, initiate appropriate Collective Bargaining Agreement disciplinary proceedings or campus governance process. The President shall communicate to all parties the action steps to be taken. Such action shall be consistent with Federal laws, and New York State rules, regulations, and laws governing rights to privacy.
Off-Campus Resolution of Grievances
If the grievant is dissatisfied with the College President's response either because of a negative finding or disagreement over what constitutes appropriate redress, the complainant may file a formal Charge of Alleged Discrimination with the appropriate local, state or Federal agency. The campus Affirmative Action Office will provide information on local, state, and/or Federal guidelines and laws and names and addresses of enforcement agencies.
Requirements for Filing Complaints
1. A complaint must be submitted in writing to the College's Affirmative Action Officer using forms provided by the Affirmative Action Office, or his or her designee.
2. Faculty or students must file a complaint within ninety (90) academic calendar days following the alleged discriminatory act. All other employees must file a complaint within ninety (90) working days following the alleged discriminatory act. (For cases involving sexual harassment see NCC's Sexual Harassment Policy.)
3. The Affirmative Action Officer, or his/her designee, shall receive any complaint of alleged discrimination, shall assist the complainant in clearly specifying the allegations, and shall 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. The Affirmative Action Officer is the official discrimination complaint receiver for the College. Once a determination has been made regarding the nature of a harassment allegation, the complainant may only use either the College Sexual Harassment Policy or Allegations of Discrimination/Harassment policy. An allegation can only be made under one policy. Official discrimination/harassment complaints must be filed with the College's Affirmative Action Office. The College Affirmative Action Officer will accept complaints only from the complainant, the person directly experiencing the alleged discrimination/harassment.
4. If the complainant chooses to use this procedure, the complainant must sign and date the completed Complaint Procedure for the Review of Allegations of Discrimination form.
5. Every effort shall be made to ensure confidentiality to all parties throughout this process.
The College-wide, Academic Standing Committee, or its Subcommittee has been established to review student complaints concerning grades. It shall continue to hear such complaints. If discrimination is alleged to have been the basis for the grade, the campus Affirmative Action Officer may at the request of the Academic Standing Committee sit with that committee in an advisory capacity during the review.
Further Provisions on Time Limits
1. All of the time limits outlined above, with the exception of the 90 day limit on the initial filing of grievances, may be extended by mutual agreement of the complainant, respondent, and the President or his designee, not to exceed two weeks.
2. If the College or designee at any step fails to review and/or respond within the time
limits provided, the complainant may proceed to the next step.
3. If the complainant fails to respond within the time limits provided, the complaint
shall be deemed to have been withdrawn. Appropriate notification shall be provided
to the complainant by the Affirmative Action Officer.
4. In the event of a question of the timeliness of any complainant, complainant appeal or response, the dating and signing of the document shall be determinative. Any notices or documents sent by mail must be sent as certified, registered mail, and date of receipt shall be determinative.
This policy seeks to encourage students, staff and faculty to express freely, responsibly, and in an orderly way, their opinions and feelings about any problem or complaint of discrimination, including harassment. Any act of reprisal, interference, restraint, penalty, discrimination, coercion, or harassment--overtly or covertly--by a College employee or agent, against a student or an employee for responsibly using this policy and its procedures interfere with free expression and openness and may be in violation of Federal and state law. Accordingly, such acts violate this policy and require appropriate and prompt disciplinary action.
FRIVOLOUS OR MALICIOUS CHARGES
This policy shall not be used to bring frivolous or malicious charges against students, employees, or faculty members. Disciplinary action under the Student Code of Conduct, or the appropriate personnel policies concerning personal misconduct, may be taken against any person bringing a charge of discrimination in bad faith.
POLICY ON PROTECTION OF ACADEMIC FREEDOM
Academic freedom and academic discourse in and by itself shall not be a basis for a discrimination complaint. The College recognizes that academic freedom is essential to the free search for truth and its exposition involving a faculty member's selection of materials or teaching methods. The faculty member is entitled to freedom in the classroom in discussing his/her subject, but should be careful not to introduce into his/her teaching controversial matter which has no relation to his/her subject.
The Affirmative Action Officer shall prepare an annual report for the College community that shall include statistics, educational initiatives, overall monitoring efforts, and other related activities pertaining to this policy. The report will be made available to the President's Cabinet, the Academic Senate Executive Committee, the Academic Senate Affirmative Action Committee (which may reprint the report) and all other interested parties. This report will maintain the confidentiality of all parties.
FEDERAL, STATE OR LOCAL FINDINGS
This document does not preclude the right to file with the Federal, state or local governing bodies. Please refer to the Nassau Community College's Handbook on Equal Employment Opportunity and Affirmative Action, or contact the Affirmative Action Officer for further information.
Approved by the Academic Senate
Affirmative Action Committee - 12/5/96
Approved by Academic Senate - 12/19/96
Approved by Board of Trustees - 1/16/97
 Discrimination is defined as making a difference in the treatment of others on a basis other than individual merit, prejudice or prejudicial outlook. Harassment is defined as "to annoy persistently".
 See separate policy for Sexual Harassment complaints. Sexual harassment is defined as sex-oriented humor or abuse, physical contacts, subtle or overt pressure for sexual activity, all appropriately handled under the College's Sexual Harassment Policy.
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ACTION VII. NASSAU COMMUNITY COLLEGE POLICY ON LEARNING DISABILITIES UNDER SECTION 504 OF THE REHABILITATION ACT OF 1973
The purpose of this policy statement is to clarify the existing college policy towards equal education for the disabled as it applies to the learning disabled. This policy statement is intended to provide guidelines to the faculty to assist them in making academic accommodations for learning disabled students while at the same time maintaining a high degree of academic excellence.
Section 504 of the Rehabilitation Act of 1973 states that:
"No otherwise qualified handicapped individual ... shall, solely by reason of handicap be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance."
This law obligates the College to make certain accommodations to provide qualified handicapped (disabled) persons with opportunities equal to those enjoyed by qualified non-handicapped persons. Section 504 further states that "Modifications as are necessary are designed to insure that academic requirements will not be discriminatory and will not effectively exclude the disabled person from completion of the program because of a lack of accommodations." As a recipient of federal assistance, Nassau Community College complies with the requirements of Section 504.
A handicapped person is anyone with a physical or mental impairment that substantially limits one or more major life activities - such as walking, seeing, hearing, speaking or learning and therefore includes the learning disabled student. Persons with learning disabilities are specifically described by the legislation as:
"Those persons who have a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which may manifest itself in imperfect ability to listen, think, speak, read, write, spell or do mathematical calculations. Such disorders include such conditions as perceptual handicaps, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. Such terms do not include persons who have learning problems which are primarily the result of visual, hearing, or motor handicaps, or mental retardation, emotional disturbance, or environmental, cultural, or economic disadvantage."
It is important to note that learning disabilities do not necessarily preclude students from being able to complete college level work. In fact, learning disabled individuals are of at least average intelligence or above. However, learning disabled students may face frustration trying to cope with the demands of college. The educational process may be impaired because their methods of learning differ. Yet with appropriate accommodations for their learning disabilities, many of these students can and do learn strategies to become successful in college.
College Admissions Policy for Learning Disabled Students
Learning disabled students must meet the same program entrance requirements as every other student at the College.
a. Students must identify themselves to Disabled Student Services and provide
appropriate documentation that they have a learning disability. Such documentation
may include, but is not limited, to the following:
1. Certification by the high school's Special Education Committee or similar body.
2. Psycho-educational evaluation by a licensed practitioner.
b. The College's obligation attaches only to those students who have identified themselves as learning disabled.
Academic Policy for Learning Disabled Students
Learning disabled students are required to meet the same standards of academic performance as other students at the College. However, faculty members and academic advisors may need to make certain accommodations (modifications) in exams, for example, which should be designed to reflect the students' mastery of the subject matter rather than reflecting the students' disabilities. The accommodations should be based on the nature of the learning disability and should be applied on an individual basis. Examples of accommodations could include, but are not limited to:
- extension of time to complete an assignment or an exam
- proofreaders for spelling
- note takers
- oral presentation of normally written material
- tape recording of lectures or written assignments
- special seating
- use of visual aids or calculators, or
- frequently providing written examples of complex lecture materials along with oral presentations.
It is the students' responsibility to make known the need for any such arrangements with the respective faculty members. Faculty are encouraged to seek the advice of the counselors in Disabled Student Services regarding appropriate accommodations.
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ACTION VIII. YOUR RIGHTS AND RESPONSIBILITIES UNDER THE AMERICANS WITH DISABILITIES ACT (ADA) AND SECTION 504 OF THE REHABILITATION ACT OF 1973
The Americans with Disabilities Act (ADA) calls for providing reasonable accommodations to known physical or mental limitations of qualified individuals with disabilities. Reasonable accommodations also must be made for individuals with disabilities, so they may participate in the employment application process, or the academic process. If you have a disability and are qualified to do a job, the ADA protects you from your disability.
Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of a handicap in the College's admission and recruitment process.
The Americans with Disabilities Act (ADA)
The purpose of ADA is to provide a national mandate for the elimination of discrimination against individuals with disabilities in employment, public services provided by governmental agencies and public accommodations and services in the private sector, such as in stores, restaurants, theaters, transportation and public places.
Are You Protected by ADA in the Workplace?
You are protected from discrimination if you have a disability covered by the law and are qualified to perform the tasks of a job with or without reasonable accommodations for your disability.
A disability is defined as "having a physical or mental impairment that substantially limits a major life activity." The ADA also protects you if you have a history of such a disability.
To be protected under the ADA, you must have a disability record or be regarded as having a substantial impairment, as opposed to a minor impairment. A substantial impairment is one that significantly limits or restricts a major life activity, such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning or working.
What Is Reasonable Accommodation?
Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. If you have a disability, you must also be qualified to perform the essential functions or duties of a job, with or without reasonable accommodation, in order to be protected from job discrimination by the ADA. This means two things. First, you must satisfy the employer's requirements for the job, such as education, employment experience, skills or licenses. Second, you must be able to perform the essential functions of the job with or without reasonable accommodation. Essential functions are the fundamental job duties that you must be able to perform on your own or with the help of a reasonable accommodation. An employer cannot refuse to hire you because your disability prevents you from performing duties that are not essential to the job. An employer is required to provide a reasonable accommodation to a qualified applicant or employee with a disability unless the employer can show that the accommodation would be an undue hardship -- that is, it would require a significant difficulty or expense.
Section 504 of the Rehabilitation Act of 1973
Section 504 provides that you cannot be denied admission to, be subject to discrimination, or be denied the full participation in any educational program which receives federal funds simply because you have a disability. Nassau Community College and virtually all of the colleges in the United States are covered by this legislation.
Are You Protected by 504 at the College?
The law contains several specific provisions similar to those prohibiting sex discrimination in the College's Admissions Policy. These provisions prohibit (1) the imposition of limitations on the number or proportion of handicapped persons who may be admitted; (2) the use of any admissions' criterion or test that has a disproportionate, adverse effect on the handicapped, and (3) any preadmission inquiry about whether the applicant is handicapped, unless the recipient needs the information in order to correct the effects of past discrimination or to overcome past conditions which resulted in limited participation by the handicapped.
These prohibitions apply to discrimination directed against "qualified handicapped" persons. A handicapped person is qualified, with respect to college and vocational services, if he or she meets the academic and technical standards required for admission or participation in the education program or activity. While the regulations do not prohibit an institution from denying admission to a handicapped person who does not meet the institution's academic and technical admissions' standards, they do prohibit an institution from denying admission on the basis of the handicap. After a student is admitted, however, the institution may make a confidential inquiry concerning his/her handicap(s). The College may obtain advance information concerning a student's handicap(s) that may require accommodation.
The College also has a duty to ascertain that its admissions' tests are structured to accommodate applicants with handicaps that impair sensory, manual, or speaking skills, unless the test is intended to measure these skills. Such adapted tests must be offered as
often and in as timely a way as other admissions' tests, and must be administered in facilities that, on the whole, are accessible to the handicapped.
Definition of ‘Person With Disability’, Section 504, Rehabilitation Act of 1973
Section 504 protects people with disabilities from discrimination based on their disability. A person has a disability (see Fig. 211, Disability Defined) within the meaning of Section 504 if he or she:
has a mental or physical impairment that substantially limits one or more major life activities;
has a record of such impairment; or
is regarded as having such an impairment.
“Physical or mental impairments” that fall within discrimination prohibitions include:
any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculosketal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or
any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
The law does not list the diseases or conditions that are considered impairments. The Rehabilitation Act does list conditions that are not covered, however, including homosexuality, bisexuality, transvestism, transsexualism, compulsive gambling, kleptomania, pyromania, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders and psychoactive substance use disorders resulting from the current illegal use of drugs (29 U.S.C. §705(20)(F)). The law also does not cover individuals who currently are engaging in the illegal use of drugs (29 U.S.C. §705(20)(C)). The ADA provides a similar list of exempted conditions.
Fig. 211, Overview of Section 504, Disability Defined
“Person with disability” means an individual who: has a physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment.
|Physical or Mental Impairment||Major Life Activities||Record of Impairment||Regarded Impairment|
|Physiological disorder, contagious disease, cosmetic disfigurement or anatomical loss in one or more system:
||Mental or psychological disorder including:
||Major life activities include:
||The individual has:
||The individual has:
|Neurological Musculoskeletal Respiratory Cardiovascular Reproductive Digestive Genito-urinary Hemic Lymphatic Skin Endocrine
||Mental retardation Organic brain syndrome Emotional or mental illness Specific learning disabilities
||Self-care Manual tasks Walking Seeing Hearing Speaking Breathing Sitting Standing Reaching Thinking Concentrating Reading Interacting with others Learning Reproducing Sleeping Working
||A history of impairment or A record of having been misclassified as having an impairment
||An impairment not limiting a major life activity, but is treated as disabled by the covered entity No impairment, but is treated as disabled by the covered entity
|Substance abuse, which does not include current, illegal drug users.
Source: Overview of Section 504
Section 504 Compliance Handbook
Thompson’s Publishing Group, p.12; Tab 200 (March, 2002)
Major life activity
To have a disability under Section 504, an individual must have an impairment that substantially limits a major life activity, which is an everyday activity an average person can perform with little or no difficulty. The EEOC includes the following in its list of major life activities under the ADA: walking; seeing; speaking; hearing; breathing; learning; performing manual tasks; caring for oneself; working; sitting; standing; lifting; reaching; thinking; concentrating; interacting with others; and sleeping (29 C.F.R. Part 1630 App. §1630.2(i) and EEOC Enforcement Guidance: The ADA and Psychiatric Disabilities). After amendments to the Rehabilitation Act in 1992, the substantive standards of Title I of the ADA became the Section 504 employment standards. Note however, not all courts agree with all of the items on the EEOC’s list.
Difficulty with repetitive work assignments
Someone who has difficulty with repetitive work assignments unique to a particular job is not substantially limited in a major life activity if he or she performs common daily tasks as easily as most individuals, according to the Supreme Court (Toyota Motor Manufacturing v. Williams, Appendix IV:921).
Working as major life activity
Working is included in the EEOC’s list of major life activities, but the commission cautions in its Technical Assistance Manual on Title I that the question of whether an individual is substantially limited in working does not arise if there is a substantial limitation to another major life activity. Moreover, an individual is substantially limited in the major life activity of working only if an impairment significantly restricts the person’s ability to perform either a class of jobs or a broad range of jobs in various classes when compared to the average person with comparable training, skills and abilities.
An individual is not substantially limited in working if he or she is unable to perform only a single job (29 C.F.R. §1630.2(j)). For example, a person who cannot qualify as a commercial airline pilot because of a correctable vision impairment but who can fly in other capacities, a pitcher who can no longer pitch or a quarterback who can no longer throw would not be substantially limited in working if it were only those specialized jobs they could no longer perform. Courts look not just at what jobs the employees cannot do, but what jobs they can do.
An individual need not be totally unable to work to be considered substantially limited in working. The following factors generally are considered:
the geographical area to which the individual has reasonable access; and
the job from which the individual has been disqualified because of an impairment and the number and types of jobs that use similar training, knowledge, skills or abilities in the geographical area from which the individual also is disqualified due to the impairment. This is the class of jobs (29 C.F.R.§1630.2(j)).
The U.S. Supreme Court has questioned whether working is a major life activity at all, but has not ruled specifically on the issue (Sutton v. United Air Lines, Appendix IV:914). Appeals courts since Sutton have held that working is a major life activity (EEOC v. R.J. Gallagher Co., 181 F.3d 645 (5th Cir. 1999)).
Section 504 Coordinator
Under Title II of the Americans With Disabilities Act, all public entities that employ 50 or more people, whether or not they receive federal funding, must name a coordinator to oversee compliance with the ADA. Analyzing its ADA Title II regulations, the Department of Justice notes that the ADA coordinator should serve the same role as it does under Section 504 – to be familiar with the requirements of the law and communicate those requirements to others within the organization who may not be aware of their responsibilities (28 C.F.R. Part 35 App. §35.107). The same person may act as a coordinator overseeing compliance with Section 504 and the ADA. Nassau Community College’s Coordinator is the Assistant to the President for Affirmative Action and Diversity/ADA/504 Coordinator, located in the Tower Building, Rooms 818-819.
Additional Questions and Answers on the Americans with Disabilities Act
Q. What is the relationship between the ADA and the Section 504 of the Rehabilitation Act of 1973?
A. The Rehabilitation Act of 1973 prohibits discrimination on the basis of handicap by the federal government, federal contractors and by recipients of federal financial assistance. If you were covered by the Rehabilitation Act prior to the passage of the ADA, the ADA will not affect that coverage. Many of the provisions contained in the ADA are based on Section 504 of the Rehabilitation Act and its implementing regulations. If you are receiving federal financial assistance and are in compliance with Section 504, you are probably in compliance with the ADA requirements affecting employment, except in those areas where the ADA contains additional requirements. Your nondiscrimination requirements as a federal contractor under Section 503 of the Rehabilitation Act will be essentially the same as those under the ADA; however, you will continue to have additional Affirmative Action requirements under Section 503 that do not exist under the ADA.
Q. Am I obligated to provide a reasonable accommodation for an individual if I am unaware of his/her physical or mental impairment?
A. No. An employer's obligation to provide reasonable accommodation applies only to known physical or mental limitations. However, this does not mean that an applicant or employee must always inform you of a disability. If a disability is obvious, e.g., the applicant uses a wheelchair, the employer "knows" of the disability even if the applicant never mentions it.
Q. How do I determine whether a reasonable accommodation is appropriate and the type of accommodation that should be made available?
A. The requirement generally will be triggered by a request from an individual with a disability, who frequently can suggest an appropriate accommodation. Accommodations must be made on a case-by-case basis, because the nature and extent of a disabling condition and the requirements of the job will vary. The principal test in selecting a particular type of accommodation is that of effectiveness, i.e., whether the accommodation will enable the person with a disability to perform the essential functions of the job. It need not be the best accommodation, or the accommodation the individual with a disability would prefer, although primary consideration should be given to the preference of the individual involved. However, as the employer, you have the discretion to choose between effective accommodations, and you may select one that is least expensive or easier to provide.
Q. What are my responsibilities as an employer for making my facilities accessible?
A. As an employer, you are responsible under Title I of the ADA for making facilities accessible to qualified applicants and employees with disabilities as a reasonable accommodation, unless this would cause undue hardship. Accessibility must be provided to enable a qualified applicant to participate in the application process, to enable a qualified individual to perform essential job functions and to enable an employee with a disability to enjoy benefits and privileges available to other employees. However, if your business is a place of public accommodation (such as a restaurant, retail store or bank) you have different obligations to provide accessibility to the general pubic, under Title III of the ADA. Title III also will require places of public accommodation and commercial facilities (such as office buildings, factories and warehouses) to provide accessibility in new construction or when making alterations to existing structures. Further information on these requirements may be obtained from the U.S. Department of Justice, which enforces Title III.
Q. Does the ADA require public posting of a notice explaining its requirements?
A. The ADA requires that you post a notice in an accessible format to applicants, employees and members of labor organizations, describing the provisions of the Act. EEOC will provide employers with a poster summarizing these and other federal legal requirements for nondiscrimination. EEOC will also provide guidance on making this information available in accessible formats for people with disabilities.
What Do I Do If I Think That I'm Being Discriminated Against?
Speak to Nassau Community College's Affirmative Action Officer. You may choose to let the Affirmative Action Officer know at any stage, before, or after you speak to anyone else, about the nature of your complaint. You may file an alleged charge of discrimination with the College's Affirmative Action Officer, who shall make every effort to resolve the problem by attempting to facilitate a resolution of the alleged incident either informally or through a formal, fact-finding procedure.
You may also elect to speak with the College's Center for Students with Disabilities. Students are also eligible for services from the Center for Students with Disabilities if they have a physical, visual, hearing or learning disability and have been accepted by the College. The program is voluntary and students must initiate contact with the office. They can do this by letting the office know that they have a disability and want such services on the College's Application for Admissions Form, or by letter.
The Center for Students with Disabilities advocacy support services are tailored to fit each individual student's need. Each student is assigned a Counselor, and the Counselor will advise the student throughout the resolution process, as well as personal concerns, or necessary accommodations. The center does not act as an investigative unit of the College.
If you think you have been discriminated against in employment on the basis of a disability after July 26, 1992, you can also contact the Equal Employment Opportunity Commission (EEOC). A charge of discrimination generally must be filed within 180 days of the alleged discrimination. You may have up to 300 days to file a charge if there is a state or local law that provides relief for discrimination on the basis of disability. However, to protect your rights, at times it is recommended to contact EEOC promptly if discrimination is suspected.
The Commission will investigate and initially attempt to resolve the charge through conciliation, following the same procedures used to handle charges of discrimination filed under Title VII of the Civil Rights Act of 1964. The ADA also incorporates the remedies contained in Title VII. These remedies include, hiring, promotion, reinstatement, back pay, and attorney's fees. Reasonable accommodation is also available as a remedy under the ADA.
While the EEOC can only process ADA charges based on actions occurring on or after July 26, 1992, you may already be protected by state or local laws or by other current federal laws. EEOC field offices can refer you to the agencies that enforce those laws.
For more specific information about ADA requirements affecting employment, contact:
U.S. Equal Employment Opportunity Commission
33 Whitehall Street, 5th Floor
New York, NY 10004-2167
For more specific information about ADA requirements affecting public accommodations and state and local government services, contact:
U.S. Department of Justice
Civil Rights Division
Disability Rights Section
950 Pennsylvania Avenue NW
Washington, DC 20530-0001
For more specific information about requirements for accessible design in new construction and alterations, contact:
U.S. Access Board
Federal Agency Committed to Accessible Design
1331 F. Street, Suite 1000
Washington, DC 20004-1111
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