ACD 404: Board on Equal Opportunity

To describe the responsibilities, composition, and procedures of ASU’s Board on Equal Opportunity

Americans with Disabilities Act of 1990 (ADA), 42 United States Code § 12101 et. seq.

Arizona Board of Regents Policy Manual - 6–201, 6–301, 6–707

University policy

All ASU employees and students

The Board on Equal Opportunity (BEO) may be utilized for hearings on written complaints of unlawful discrimination not resolved under the procedures set forth in ACD 403, “Procedures for Resolving Complaints of Unlawful Discrimination” or in accord with ACD 509–02, “Grievance Policies and Procedures for Faculty.” The BEO will review all requests for hearings, recommending denial or acceptance.

After accepting a request for hearing, the chair of the BEO and the director or an assistant director from the Office of Diversity, Human Resources will work together to arrange the hearing and gather the necessary information from the complainant and respondent.

A quorum of the BEO will convene as a hearing panel to hear the complaint, meeting afterward in a closed session to vote and determine whether discrimination has occurred. The BEO panel will then report its findings and recommendations to the president, who will make a final decision on the complaint.

The “Procedures” section describes the composition of the BEO and details its review, hearing, and decision processes.

Accessibility for Complainants with Disabilities

All phases of the complaint procedures, including the hearing before the BEO, shall be made accessible to complainants or respondents with disabilities. If auxiliary aids are requested to assist in participation at the hearing, reasonable efforts shall be made to provide them. Auxiliary aids may include the use of interpreters.

Waiver of Time Limitation

Any deadlines for providing information or for hearings specified by the BEO hearing procedures may be extended or waived for good cause at the discretion of the chair of the BEO or the president.

Confidentiality

The right to confidentiality of all parties involved in a discrimination charge shall be strictly observed insofar as confidentiality does not interfere with the university’s legal obligation to investigate allegations of misconduct brought to the university’s attention and to take corrective action.

Retaliation Prohibition

The university prohibits retaliation against anyone seeking redress under these procedures. Any retaliatory action taken by a supervisor, manager, or employee of the university against the complainant, a witness, or any participant in the grievance process is prohibited and may be grounds for termination from employment. Retaliation shall be regarded as a separate complaint under these procedures.

From the date the Office of Diversity, Human Resources or executive vice president and provost of the university/vice president/vice provost notifies the parties to a complaint that they may request a hearing before the BEO or in accord with ACD 509–02, the parties have 30 days to request a hearing. In the case of a complaint filed against a unit such as the office of a dean or any department, the respondent shall seek approval by the vice president/vice provost responsible for that area prior to requesting a hearing before the BEO. A request to the BEO for a hearing shall be made on a Request for Hearing form (see ACD 404A), which is available from the Office of Diversity, Human Resources.

Upon receipt of the Request for Hearing form, the chair will convene the BEO in person, by e-mail, or by telephone. After reviewing the Request for Hearing form, the BEO may recommend denial or acceptance of the request. The decision must be made within seven days of receipt of the Request for Hearing form.

Denial

The BEO may recommend denial of the request for any of the following reasons:

1. The complaint of discrimination was not filed within 120 calendar days.
2. The complaint on its face fails to state a claim of unlawful discrimination.
3. The complaint may be more appropriately pursued through another avenue, such as the University Grievance Committee or the University Committee on Academic Freedom and Tenure, because the central issue or issues are other than discrimination.

If the recommendation of the BEO is to deny the request for a hearing, the chair shall within 10 days inform the complainant, the respondent, and the president in writing, stating grounds for the recommendation to deny.

Acceptance

If the request for a hearing is accepted by the BEO, the chair shall within seven days of accepting the complaint, forward a copy of the request and the complaint to the respondent, requesting a written response within 15 days of receipt. Concurrently, the Office of Diversity, Human Resources will ensure that the complainant and the respondent each have a copy of this policy. Hearings involving allegations of sexual harassment will be completed and the report filed with the president within 90 days of acceptance of the request for hearing.

If the BEO determines that a hearing is warranted, the chair will:

1. Set a hearing date within 60 days of the receipt of the request for a hearing.
2. Notify the complainant and the respondent in writing at least 20 days before the hearing of the time and place of the hearing before the BEO and of their right to use counsel during the proceedings.
3. Provide the complainant and the respondent with the Data Sheet for Board on Equal Opportunity Hearing (see ACD 404B), which shall be completed and returned to the chair of the BEO at least 15 days before the hearing date. The requested data includes:
4. 1. a written statement of the party’s position in the case
   2. a list of the names of all witnesses who will be asked to be present at the hearing
   3. a brief summary indicating what the testimony will be and how it is relevant to the case
   4. a list of the documentary information that will be presented at the hearing

      and

   5. whether counsel will represent complainant, and, if so, the counselor’s name, address, and telephone number.
5. Meet with the complainant and the respondent and their counsel, if appropriate, before the hearing to narrow the issues and discuss any related matters.
6. Facilitate exchange of documents with the parties and provide copies of the parties’ documents to the hearing panel at least 15 days before the hearing.

The BEO shall convene as a body at the time and place indicated on the notice to the complainant and respondent. The chair of the BEO or a chair designated by the president of the university shall preside over the hearing. The chair shall review these procedures for circumstances that may arise and may fashion procedures, with the consent of the BEO, to meet the particular circumstances before the board.

The hearing is considered a personnel matter and will be closed. The chair of the hearing panel has subpoena power.

Quorum Comprising a Hearing Panel

In order for the BEO to conduct a hearing, there must be a quorum of the board members in attendance at the hearing. Five members of the Board on Equal Opportunity, including the chair, shall constitute a quorum for purposes of conducting a hearing. Those members of the board attending the meeting called for the purpose of hearing a grievance and constituting a quorum shall comprise the hearing panel.

Composition of a Hearing Panel

In order for the hearing panel to conduct a hearing, there must be at least one member of the hearing panel from the same university “status,” “group,” or “constituency” (i.e., administrative status, faculty, academic professional, classified, service professional, or student) as the complainant and at least one member of the hearing panel from the same university status, group, or constituency as the respondent.

Recording of the Hearing

The hearing will be recorded. Any recordings of the proceedings other than those made for the use of the hearing panel must be authorized by the president of the university.

General Provisions for the Hearing

The hearing is not a trial; however, witnesses shall be under oath. The rules of evidence used in a court of law do not apply and the chair may exclude information that is deemed irrelevant or unnecessarily repetitive. The complainant and the respondent or their counsel will have the opportunity to present their positions regarding the complaint orally, to present any documentary information, and to call any witnesses identified on the Data Sheet.

Both the complainant and the respondent shall be present for all testimony. At the request of the complainant or the respondent, witnesses shall be excluded from the hearing except while testifying.

The complainant or respondent or their counsel may challenge any member of the hearing panel for good cause, such as potential conflict of interest, bias, or other good cause for challenge. The chair’s decision on the challenge will be final; however, the challenge for good cause and the chair’s decision will be part of the hearing record and noted in the report to the president.

The complainant and the respondent or their counsel shall have the opportunity to review all documentary information presented by the opposing party during the hearing. The complainant and the respondent or their counsel shall have the opportunity to explain or rebut any oral or documentary information presented to the BEO.

The complainant and the respondent or their counsel may ask questions of any witness. Members of the BEO may ask questions of the complainant, the respondent, or any witness while testimony is being presented.

Nothing in this section shall be construed to restrict or limit the BEO in conducting a hearing that is impartial, thorough, and timely.

Hearing Procedures

At the beginning of the hearing, the chair will:

1. ask all members of the hearing panel to identify themselves and their ASU status
2. introduce the complainant and counsel (if used)
3. introduce the respondent and counsel (if used)
4. read the procedures for conducting the hearing

   and

5. entertain any requests to exclude witnesses from the hearing except when they are called to testify.

Each party or counsel may present an opening statement of his or her position. Generally, the grievant or counsel will then present all of his or her witnesses and documents. The committee members may question the witnesses and ask questions about documents presented. The respondent or counsel may question the grievant. After the grievant has presented his or her case, the respondent or counsel shall have an opportunity to present witnesses and documents, and the committee members may question the witnesses and ask questions about documents presented. The grievant or counsel may question the respondent. The members of the committee may question the parties throughout the hearing.

First the complainant and then the respondent or their counsel will have the opportunity for rebuttal and closing statements to the hearing panel. Following closing statements, the hearing panel will adjourn to meet in closed session.

After all permissible information has been presented, the chair will adjourn the hearing and the hearing panel will meet in closed session to discuss the information presented and deliberate the merits of the case. Based on the information presented at the hearing, the BEO panel shall, by a majority vote, determine whether a preponderance of the information presented indicates that the complainant has been discriminated against because of race, color, religion, national origin, citizenship, sex, gender identity, sexual orientation, age, disability, other protected veteran status, newly separated veteran status, special disabled veteran status, and/or Vietnam-era veteran status. Additional closed sessions for deliberation may be set by the hearing panel until a determination is reached.

Within 30 days after the hearing, the chair will forward a written report of findings and, if appropriate, recommendations to the president. The chair will notify the complainant and respondent in writing that the report has been submitted to the president.

The report shall include a summary of the hearing, findings of fact, the decision of the BEO panel, reasons for the decision, and, if appropriate as determined by the panel, a minority report and the number of concurring and dissenting votes.

The report and all documentation relating to the hearing shall be confidential. Only the president may release the report or any information in support thereof to the complainant and the respondent, upon request from either. The BEO panel will provide a copy of the report to the Office of Diversity, Human Resources that shall be kept on file in the Office of Diversity, Human Resources.

Within 45 days of receipt of the committee report, the president shall decide the matter and forward a written statement to the grievant, the respondent, and the members of the hearing committee. If the president cannot issue a decision within the 45-day period, the president will notify the parties within the 45-day period of a delay in the issuing of the decision, the reasons for the delay, and the date on which the decision can be expected. The decision of the president shall be final.

Request for Review or Rehearing

1. The complainant who is dissatisfied with the decision may request a rehearing or review by filing a written request with the president no later than five working days following receipt of the written decision. The request shall be based on one or more of the following grounds:
2. 1. irregularities in the proceedings, including but not limited to any abuse of discretion or misconduct by the hearing officer or hearing panel, which has deprived the complainant/grievant of a fair and impartial disciplinary process;
   2. newly discovered material evidence which could not have been presented during the fact-finding or hearing process;
   3. excessive severity of the sanction;

      or

   4. that the decision is not justified by the evidence or is contrary to law.
3. Following receipt of the request for review, the president shall make whatever review is deemed necessary to resolve the issues that have been raised.
4. The president will respond in writing to the complainant’s request for review or rehearing within 20 days after receipt of the request, and may uphold or modify the previous decision, or grant a rehearing on the issues raised by the request. The decision following review or rehearing is final.
5. To pursue the case outside the university, complainant must file a legal action in Maricopa County Superior Court within 35 days after receipt of decision following review or rehearing, in accordance with Arizona Revised Statutes, § 12–901, et seq. The action must be filed in court within 35 days after receipt of the president’s decision, if the grievant does not request reconsideration, or within 35 days after receipt of the president’s response following reconsideration, if requested by the grievant.

In cases where recommendations have been made to and approved by the president of the university and officially communicated to the appropriate executive vice president and provost of the university, vice president, or vice provost for action, the executive vice president and provost of the university, vice president, or vice provost shall notify the Office of Diversity, Human Resources in writing within 10 working days of the actions taken. The notice of action taken shall become part of the permanent record of the case.

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ACD 404A, Request for Hearing before the Board on Equal Opportunity

ACD 404B, Data Sheet for Board on Equal Opportunity Hearing