MSU Anti-Discrimination Policy

Michigan State University is committed to fostering an environment free of discrimination and harassment. The University prohibits discrimination and harassment as a foundational expectation of behavior to facilitate safe and equitable participation in University programs and activities.

This revised version of the Anti-Discrimination Policy was recently announced and will be effective as of May 1.

Access the policy in MSU's Policy Library: Anti-Discrimination Policy (ADP)

For more information regarding reasonable accommodations, please visit the ADA Coordinator's page. 

  • I.    POLICY STATEMENT 

    Michigan State University is committed to fostering an environment free of discrimination and harassment. The University prohibits discrimination and harassment as a foundational expectation of behavior to facilitate safe and equitable participation in University programs and activities. The University and members of the University Community are prohibited from discriminating against or harassing any person on the basis of age, color, disability status, ethnicity, gender, gender expression, gender identity, genetic information, height, marital status, national origin, political affiliation, race, religion, sex (including pregnancy), sexual orientation, military or veteran status and weight, or any other status protected by applicable federal or state law in any of its programs or activities. The University also prohibits retaliation against those who oppose or report discrimination or harassment, or who participate in the University's investigation and handling of such reports.

    The University complies with federal and state laws that prohibit discrimination and harassment, as described in this Policy.

    This Policy explains how to report potential prohibited conduct and obtain support and resources, as well as the University’s processes for responding to and addressing reports and formal complaints of prohibited conduct.  

    Reports of sex discrimination that include harassment based on sex, gender, gender identity, gender expression, sexual orientation, or sexual identity or relationship violence, sexual misconduct, or stalking will be reviewed under the University’s Relationship Violence and Sexual Misconduct and Title IX Policy (RVSMTIX Policy).

     

  • II.   SCOPE
    This Policy applies to all University community members, including faculty and staff (paid or unpaid), students, volunteers, applicants, registered student organizations, student governing bodies, the University’s administrative units, the University’s contractors in the execution of their University contracts or engagements, all individuals participating or attempting to participate in a University program or activity and third parties where the reported conduct occurs or is occurring:
    1. On campus;[1]
    2. Off-campus in a University-sponsored program or activity, including but not limited to cooperative extension, intercollegiate athletics, lifelong education, any regularly scheduled classes; and locations including buildings owned or controlled by student organizations officially registered with the Division of Student Life & Engagement. This includes fraternities and sororities registered with the Division of Student Life & Engagement;
    3. Off-campus in a program or activity sponsored by a student governing body, including their constituent groups, or registered student organization; or
    4. Off-campus and outside of a University-sponsored program or activity but the conduct has continuing adverse effects on the campus or on a University-sponsored program or activity.
    Reported conduct that meets the above criteria falls within coverage for investigation and response pursuant to this Policy. 
  • III.  DEFINITIONS
    1. General Policy Definition
      1. Adverse action: in the context of employment, this may include, but is not limited to, a demotion, termination, decrease in wages or salary, material loss of benefits, denial of a term or condition of employment, significantly diminished material responsibilities; or other material changes to the terms or conditions of employment. Adverse action in the context of education may include, but is not limited to, a grade not based on class or test performance; denial of access to a course, program, organization, or housing; denial of support, services, or other assistance given to other students; or denial of an award or scholarship that otherwise would have been received. In the context of retaliation, an adverse action is an action that might have dissuaded a reasonable person from engaging in a protected activity.
      2. Claimant: a person who reportedly experienced prohibited conduct under this Policy regardless of whether the person makes a report or seeks action under this Policy.
      3. Continuing Adverse Effect: prohibited conduct may have a “continuing adverse effect” if it causes or threatens to cause a substantial negative impact on the safety of the University community or the functions, services, or property of the University. This would include, but is not limited to, causing an unreasonable interference with the educational or work environment of a member or members of the University community or on the campus generally.
      4. Executive/Director: the OCR Executive Director of Support, Investigation, and Resolution, their designated or other appropriate designee.
      5. Hostile Environment: when conduct is both subjectively and objectively offensive and is either so severe, persistent or pervasive that it limits or denies a person’s ability to participate in or benefit from an educational program or activity, or unreasonably interferes in the person’s workplace environment.
      6. The Office for Civil Rights and Title IX Education and Compliance (OCR): is the University office responsible for civil rights compliance, including compliance with this policy.
      7. Party: an individual who is a claimant and/or a respondent.
      8. Protected Activity: includes a report of discrimination or harassment, participation (or reasonable expectation of participation) in any manner in an investigation, proceeding, hearing, or interim or supportive measure under the ADP or RVSMTIX Policy, opposition to discrimination or harassment, request for accommodation related to disability, religion, pregnancy, childbirth or pregnancy related condition, and/or student request for a modification related to pregnancy, childbirth, pregnancy related condition or parenting status.
      9. Qualified individual with a disability: an individual who, with or without reasonable accommodations, can perform the essential functions of the academic program or job.
      10. Reasonable Person: a person using ordinary care and judgment under same or similar circumstances.
      11. Respondent: a person, registered student organization (RSO), or unit (e.g., the University, or a department, college, or office) that has been reported to have engaged in prohibited conduct.
    2. Identity Definitions and Representation
      MSU’s Anti-Discrimination Policy is intended to protect members of MSU’s community from conduct that interferes with their access to MSU’s programs and services when the conduct is based on the community member’s protected identity, including their physical characteristics and personal histories. 
      As MSU is a global community, and identity-related language can be understood differently depending on cultural and individual experience, the definitions below are provided to help classify identity-based conduct according to the categories outlined in this Policy. 
      Conduct based on a community member’s perceived identity(ies) will be evaluated as conduct based on those identity(ies), even when not explicitly included in the definition. Additionally, conduct based on intersections of the identities defined here (as well as their stereotypes and expectations) will be evaluated as identity-based conduct under this Policy.  
      The definitions below are informed by local, state, and federal law governing MSU’s obligations to prevent and respond to discrimination.
      Harassment based upon sex (actual or perceived), gender, gender identity, gender expression, sexual orientation, and sexual identity will be reviewed under the University’s RVSMTIX Policy.
      1. Age: the chronological length of time a person has lived. Conduct based on the protected category of age includes invoking stereotypes based on age as well as youth, including stereotypes related to the actual or perceived generational membership of an individual.
      2. Color: a person’s skin color or complexion.
      3. Disability Status: a physical or mental impairment that substantially limits one or more major life activities (actual disability); a record of having such impairment (record of); or being regarded as having such impairment (regarded as).
      4. Ethnicity: an individual’s shared common language, culture, ancestry, race, and/or other social characteristics, sometimes shared with other groups of people.
      5. Gender: Socially constructed roles, behaviors, activities, and attributes that a given society deems masculine or feminine. Gender is a social construct framed by a society’s understanding of masculinity and femininity as related to roles, behaviors, expectations, activities, identities, and attributes. This term is often understood as a binary, however, historically and presently, gender is expansive and dynamic. Discrimination and harassment based on any of the key elements of an individual’s gender is prohibited. These elements are:
        • gender identity (a person’s deep-seated, internal sense of who they are as a gendered-being, specifically, the gender which they identify themselves)
        • gender attribution (the way in which a person’s gender is interpreted by others), and
        • gender expression (the way a person expresses their gender)
        • Identity terms in this category may include: woman, man, cisgender, transgender, non-binary, genderqueer, gender non-conforming, agender, two-spirit. This is not a comprehensive list of protected gender categories and terms.
      6. Gender Expression: the way in which someone expresses their gender, either consciously or unconsciously. This can encompass everything that communicates our gender to others, including clothing, hairstyle, body language, manner of speaking, social interactions, and gender roles. Most people have some blend of masculine and feminine qualities that comprise their gender expression, and this expression can also vary depending on the social context. There is not always a direct translation between gender identity and gender expression. A person’s gender expression may or may not align with the way people attribute gender to that person.
      7. Gender Identity: a person’s individual understanding of their own gender and the language they use to describe this understanding (e.g., pronouns). This can also be considered one’s innate and personal experience of gender. 
      8. Genetic information: Information about an individual’s genetic composition, including information from genetic tests and the genetic tests of an individual’s family members, as well as information about family medical history and the manifestation of a disease or disorder in an individual’s family members.
      9. Height: the distance from the top to the bottom of an individual while fully extended.
      10. Marital Status: a person’s state of being single, married, separated, divorced, or widowed. MSU recognizes its community members’ decisions to employ family structures not recognized by the legal system and will respect those wherever they do not conflict with rights granted by law.
      11. National Origin: a person’s affiliation to a country, region, particular part of the world, or ancestral background. Conduct based on traits or characteristics linked to an individual’s national origin, including physical, cultural (e.g. attire or diet), linguistic (e.g. accent or lack of fluency in English),[3] and caste or similar systems of social stratification can be evaluated as based on national origin.
      12. Political Affiliation: an individual’s political beliefs, party affiliation (or non-affiliation), or civic activities.
      13. Race: affiliation with or membership in one or more social groups that share common physical features or ancestry. The term race includes traits that have been historically associated with race, which would include at least hair texture and protective hairstyles (e.g. braids, locks, and twists).
      14. Religion: sincerely held religious, ethical, or moral beliefs and related practices including commemoration or observance. This includes those identified with traditional organized religions as well as religious beliefs that are new, uncommon, not part of a formal church or sect, or only held by a small number of people. Social, political, or economic philosophies, and personal preferences are not religious beliefs for the purposes of this policy.
      15. Sex: the designation that refers to a person’s biological, morphological, hormonal, and genetic composition. One’s sex is typically assigned at birth and classified as either male or female. MSU and its data systems uses the term “Legal Sex” to distinguish this designation from gender. In accordance with applicable state and federal law, discrimination and harassment based on sex includes, but is not limited to, discrimination or harassment based on pregnancy, which includes, but is not limited to, pregnancy, childbirth, false pregnancy, miscarriage, termination of pregnancy, abortion services, lactation, conditions arising in connection with pregnancy, and recovery from any of these conditions, in accordance with federal law. 
      16. Sexual Orientation[4]: the language a person uses to describe themselves as a sexual being. Frequently referred to as “sexual identity.” One’s sexual identity may or may not align with one’s sexual behavior or sexual attractions. A few common sexual identity terms include bisexual, pansexual, lesbian, gay, and straight. This includes identities related to a person’s feelings of attraction towards other people (e.g. asexual, bisexual, demisexual, gay, lesbian, queer, questioning or unsure, same-gender loving, straight).
      17. Veteran/Military Status: service in the military of the United States of America or its territories, including army, naval, air, marine, or coast guard service, or reserves.
      18. Weight: Weight covers the full spectrum of body masses.
  • IV.  POLICY

    The University and members of the University Community are prohibited from discriminating against or harassing any person on the basis of age, color, disability status, ethnicity, gender, gender expression, gender identity, genetic information, height, marital status, national origin, political affiliation, race, religion, sex (including pregnancy), sexual orientation, military or veteran status, weight, or any other status protected by applicable federal or state law in any of its programs or activities. These identities will be collectively referred to as “protected identities” throughout this Policy.

    1. Prohibited Conduct[5]
      1. Discrimination is conduct that is based on an individual’s protected identity or identities that:
        1. Adversely affects a material term or condition of an individual’s employment or an individual’s access to education or participation in a University program or activity;
        2. is used as the basis for or a factor in decisions of an individual’s employment, education or participation in a University program or activity, except as required or permitted by law;[6]or
        3. results in differential enforcement of a facially neutral policy or practice. 
      2. Harassment is unwelcome conduct that is based on an individual’s protected identity or identities that unreasonably interferes with an individual’s education or work environment such that it creates a hostile environment.
      3. Retaliation – The University and members of the University Community are prohibited from retaliating against individuals who oppose discrimination or harassment, report discrimination or harassment, or participate in an investigation, proceeding, hearing, interim or supportive measure in accordance with the ADP and/or RVSMTIX Policy, or otherwise engage in a protected activity. Retaliation is defined as a materially adverse action taken because of a person’s protected activity (includes retaliatory harassment).[7]
    2. First Amendment and Academic Freedom – As an institution of higher learning, the University values community members’ right to freedom of speech, expression, religion, assembly, and the preservation of academic freedom.
    This Policy shall not be interpreted to violate a community member’s First Amendment rights, or to chill speech or expression. This freedom is afforded to all community members regardless of their espoused viewpoint, but these protections are not without limitation. The University also has an obligation under federal and state law to create an environment free from discrimination. As such, the University will respond, as outlined in this Policy, when the reported behavior impedes an individual’s access to the University’s programs or activities or creates a hostile environment.
    The determination about whether speech or expression is protected by the First Amendment is a fact-specific inquiry and will be determined on a case-by-case basis. The University acknowledges that there will be instances where a community member will be impacted by an incident that is otherwise protected by the First Amendment. The University remains steadfast in its commitment to support a safe and inclusive environment for all community members and will, as appropriate, provide individual support to preserve and restore community members’ access to the University’s programs and activities.
    OCR will not make a finding of responsibility on the basis of speech or expression that is protected by the First Amendment.[8]   
  • V.  POLICY PROCEDURES

    1. Reporting: Community members who observe or learn about incidents of discrimination or harassment, as well as individuals who are impacted by incidents of discrimination and harassment, are encouraged to report to the Office for Civil Rights and Title IX Education and Compliance.

      Prompt reporting of potential policy violations allows the University to comply with its obligation under federal and state laws to provide a safe and inclusive campus for all individuals who participate in the University’s programs and activities. The University will take prompt and effective steps to respond to and investigate reports of discrimination and harassment in accordance with this Policy.

      Supervisors and Administrators are expected to report incidents of harassment they observe or learn about in the workplace. Additionally, employees designated as Campus Security Authority (CSA) under the Clery Act may have additional reporting requirements.[9]

      1. How to Report Discrimination or Harassment - Online Reporting Form: https://msu.guardianconduct.com/incident-reporting/ . 

        Office for Civil Rights and Title IX Education and Compliance

        408 W. Circle Dr.

        Olds Hall, Suite 5 (Garden Level)

        East Lansing, MI 48824

        (Accessible entrance on the north side of Olds Hall, nearest the Hannah Administration Building)

        (517) 353-3922

        oie@msu.edu 

        The online reporting form can be used outside of regular business hours and will be monitored during regular business hours.

        **If there is a safety or emergency medical concern, or a crime is occurring or has just occurred, call 911.

        Information about a potential crime may also be reported to the MSU Department of Police and Public Safety (MSU DPPS) at 1120 Red Cedar Road, East Lansing, MI 48824 or by phone at (517) 355-2221.

      2. Confidential Resources: community members may choose to discuss incidents with a confidential resource like the ones listed below. A conversation or contact with a confidential office will generally not result in a report to the University.

    2. Timeline for Reporting: although there is no specific deadline for reporting anincident of discrimination or harassment, individuals are encouraged to report as soon as practicable under the circumstances. The sooner the University is informed, the better able the University is to respond and address the incident. Even if there has been a delay in reporting an incident, you are still encouraged to report to OCR.

    3. Privacy of Information and Information Sharing

      1. Process Privacy: the University will seek to protect the privacy of parties in compliance with applicable laws and regulations. Information provided by the parties and witnesses is considered private but may be disclosed to the other party or parties, or others, in the process of investigation or other supportive services and may ultimately be included in the investigation report. The privacy of information exceptions include disclosures that may be permitted by the Family Educational Rights and Privacy Act (FERPA) statute or regulations, are required by law, and/or are necessary to carry out the purposes of this Policy.  

      2. Notifications: in accordance with the Protocol for Coordinated Response Between FASA, OER, OCR, OHS, HCI, and Unit Leadership of Reported Violations of MSU Office for Civil Rights Policies[10], where a respondent is an employee or is otherwise under the control of the University, OCR will provide the supervising unit and applicable Human Resources unit with an initial notification, periodic updates regarding the investigation, and information regarding the outcome of the OCR process.

      3. Notice to the University President and Board of Trustees: the Title IX Coordinator will provide the University President and Board of Trustees with copies of all final investigative reports and written determinations for ADP gender-related matters involving alleged misconduct by an employee of the University. Reports will be provided in a manner that protects the claimant’s anonymity and will not contain specific identifying information of the claimant or witnesses.[11]

    4. Supportive Measures and Interim Employment Actions

      1. Supportive Measures: the University offers non-disciplinary, non-punitive individualized services as appropriate, as reasonably available, and without fee or charge to a claimant or a respondent before or after the filing of a complaint or where no complaint has been filed, and regardless of whether the claimant chooses to speak with MSU DPPS or other law enforcement. Supportive measures are designed to restore or preserve equal access to MSU’s education programs or activities, including but not limited to protecting the safety of all parties or the University’s educational or employment environment or to deter conduct prohibited under this policy. Supportive measures will not unreasonably burden the other party. Supportive measures may include referrals to counseling; extensions of deadlines or other course-related adjustments; modifications of work or class schedules; mutual no contact directives; ASMSU Safe Ride services; changes in work or housing locations; leaves of absence; increased security and monitoring of certain areas of the campus; and other similar measures.To the extent possible, the University will not disclose the provision of supportive measures to a claimant or respondent unless necessary to provide the supportive measures.

      2. Administrative/Interim Leave of Employees: the University may place employees on administrative leave/suspension pending investigation through final resolution of the formal grievance process. For information regarding administrative leave of faculty and academic staff, please contact Faculty and Academic Staff Affairs. For information regarding support staff, please contact the MSU Office of Employee Relations.

      3. Other Employment Action: other interim actions may be available on a case-by-case basis. Any interim employment action will be taken consistent with the University’s policies.

      4. Violation of University Directives: parties who fail to abide by University directives may be subject to discipline

    5. Language Assistance: OCR offers translation services through a third-party vendor. If you need language assistance, please contact oie@msu.edu. 

    6. Reasonable Accommodations Based on Disability: If you are an individual with a disability and need accommodation to fully participate in the complaint, investigation, or disciplinary or appellate process, please contact the Resource Center for Persons with Disabilities (RCPD).

    7. Advisors and Support Persons: claimants and respondents may each have one advisor and/or one support person of their choice present at any meeting related to this Policy. OCR will provide an Advisor for a party upon request, or a party could choose their own Advisor (e.g., attorney, ASMSU Student Rights Advocate etc.). MSU employees may also bring their Union representative to any meeting with OCR. Witnesses can also bring a support person to any meeting with OCR. The advisor/support person should not provide a statement on behalf of the party, be a witness or otherwise have any conflicting role in the process.An advisor/support person who is verbally abusive; disruptive to the investigative process; or persists in trying to substantively interfere with the University process after a warning to cease and desist may be asked to leave and may be precluded from attendance at future meetings or conferences.If an advisor/support person would like to be copied on communications between OCR and the party or communicate directly with OCR regarding the party, the party may be required to sign a FERPA release.

    8. Initial Assessment: during the initial assessment of a report of potential prohibited conduct, OCR will review all readily available information to identify Claimant(s) and Respondent(s) and determine policy coverage. Initial assessment includes outreach to identified Claimant(s) and may include outreach to the reporting party and applicable academic/employment unit in accordance with the Protocol for Coordinated Response Between FASA, OER, OCR, OHS, HCI and Unit Leadership of Reported Violations of MSU Office for Civil Rights Policies.As Campus Security Authorities, OCR staff will fulfill reporting obligations if reporting criteria under the Clery Act are met.[12]

      1. Notification of Supportive Measures and Formal Complaint Process: OCR will promptly notify the Claimant in writing about the availability of supportive measures, confidential resources, and other resources, with or without the filing of a formal complaint; the process for filing a formal complaint; and the opportunity to meet with OCR to discuss options. Meeting with OCR to discuss options does not require a Claimant to file a formal complaint, nor does a formal complaint need to be filed prior to meeting with OCR.

      2. Options Meetings: for an individual who has been impacted under this Policy, the first meeting with OCR will be with the Support and Intake (SIT) Coordinator to discuss their options for moving forward and needs for support. Options include, but are not limited to:

        1. Receiving supportive measures, with or without signing a formal complaint

        2. Pursuing a resolution alternative to investigation as referenced in Section V.9 of this Policy.

        3. Signing a Formal Complaint and proceeding with investigation.

        4. Referral to the academic or administrative unit and/or HR.

        5. Requesting closure without moving forward with investigation or alternative resolution.The SIT Coordinator may also discuss the potential for a Executive/Director-signed complaint pursuant to Section V.10.b.

      3. Closure Prior to Formal Grievance Process: after initial assessment, a report may move to closure if (1) the parties cannot be identified; (2) the reported incident does not fall within the scope of the Policy; (3) the reported information does not meet the Policy definition of discrimination or harassment; (4) there is insufficient information to determine whether the incident is covered under the Policy; (5) the Claimant does not respond to outreach or otherwise indicates they do not want to participate; (6) Claimant requests closure after an options meeting and closure is approved; or (7) any other circumstance that requires closure.If a report is closed, it may still be reopened if additional information becomes available.Members of the University community are strongly encouraged to participate in the University’s investigation of reported discrimination, harassment or retaliation. If you have questions about participating in the formal grievance process, including as a party or witness, you are encouraged to contact OCR at (517) 353-3922 or oie@msu.edu. If individuals choose not to participate, the investigation may proceed based on the available information. Additionally, a claimant or the Executive/Director may sign a formal complaint after a report has been moved to closure. OCR may refer reports, including information contained in a report, to another unit on campus if appropriate for consideration under other University policies and laws. Other units include Faculty and Academic Staff Affairs, Office for Employee Relations, and the Office of Student Support and Accountability.  

    9. Alternative University Options for Resolution: OCR recognizes that the traditional investigative and adjudicative processes do not always adequately fulfill the needs of the person who has experienced harm or allow the parties an opportunity to repair the harm that has been caused. Both parties must voluntarily agree to an alternative resolution, preferably in writing. Ideally, the parties would agree to an alternative resolution prior to OCR initiating the formal grievance process; however, the parties may request an alternative resolution at any time (even during the formal grievance process). The following alternative resolution options may be available through OCR or another University office:

      • Restorative justice

      • Healing circle

      • Mediation or shuttled negotiation

      • Educational meeting or training

      • Agreed upon remedy or sanction

      • Written apology

      • This list is not meant to be exhaustive, and the parties may identify other forms of alternative resolution. Any terms or conditions agreed upon by the parties as a result of the alternative resolution must be in writing and signed by the parties. Both parties have the right to withdraw from the alternative resolution at any time and may request to initiate or resume the formal grievance process. OCR must also agree to the alternative resolution and has the discretion to deny the parties’ request for an alternative resolution if OCR deems the resolution to be unreasonable considering the circumstances or to ensure health and safety of others.

    10. Formal Complaint: the formal grievance process is initiated only when a formal complaint is signed and filed by the claimant or the Executive/Director.

      1. Content: the formal complaint is a document that alleges prohibited conduct against the respondent(s) and requests that the University investigate the allegation(s). A claimant or Executive/Director files a formal complaint by completing and signing a formal complaint (in writing or electronically) and submitting it to OCR. The formal complaint begins the formal grievance process; additional information may be gathered and considered during the formal grievance process.

      2. Executive/Director Signed Complaint: to ensure a safe and inclusive campus environment, the Executive/Director may sign a formal complaint. The Executive/Director must consider filing a formal complaint if the University knows or reasonably should know that an employee, including faculty, staff, or academic staff, is alleged to have engaged in any prohibited conduct set forth in this Policy. The Executive/Director will take into account all available information, including any pattern of similar reported discriminatory or harassing behavior, risk that the reported discriminatory or harassing behavior will continue to impact others, and any other circumstances that warrant response and intervention from OCR. The University will exercise reasonable care to prevent and promptly correct any prohibited conduct. The Executive/Director may also refer the report to the respondent’s unit and to Faculty and Academic Staff Affairs (FASA) or the Office of Employee Relations (OER), as appropriate.

      3. Anonymity: a party cannot be anonymous once a formal complaint is signed. All information included in the formal complaint, including the parties’ names, may be shared with applicable parties in an investigation, the appropriate academic/employment unit, Faculty and Academic Staff Affairs (FASA) and/or Office of Employee Relations (OER).

      4. Consolidation or Separation: the University may consolidate or separate formal complaints involving more than one claimant or more than one respondent, or if evidence relevant to one incident might be relevant to the others, including where the reports of prohibited conduct arise out of the same facts or circumstances. When consolidated, complaints proceed through the formal grievance process jointly and may be combined into one report, but determinations regarding responsibility will be made as to each party and allegation.

      5. Coverage Determinations: if a formal complaint is signed by a claimant or the Executive/Director and the information available indicates that the formal complaint meets the ADP coverage criteria (Section II), the University will proceed with the formal grievance process.

      6. Dismissal Determinations[13]: the University may dismiss all or part of a formal complaint at any time prior to the completion of the formal grievance process for any of the reasons set forth below:

        1. Mandatory dismissal: the formal complaint must be dismissed if the alleged conduct does not meet the Policy Scope criteria set forth in Section II(1)-(4) and/or the allegation would not, even if proven, meet the definition of discrimination, harassment, or retaliation.

        2. Permissive dismissal: the formal complaint may be dismissed if (a) the claimant, or for Executive/Director signed complaints, the Executive/Director, withdraws the complaint, (b) specific circumstances prevent gathering evidence sufficient to reach a determination, (c) the parties have voluntarily and mutually agreed to an alternative resolution, (d) both parties are no longer affiliated with the University, or (e) the Executive/Director determines that other circumstances necessitate dismissal.

        3. Appeal: parties may appeal a dismissal to the Equity Review Officer (ERO) within five (5) business days

    11. Simultaneous Investigations: an individual may be part of another investigation process simultaneously and concurrently (e.g. student conduct, criminal). OCR may work with these other investigative units to share information regarding the parallel investigation as appropriate. OCR will not wait for the conclusion of another investigation to conduct its own investigation; however, OCR may delay its investigation upon request from a law enforcement agency.

    12. Formal Grievance Process: the major stages of the formal grievance process are: 1) the investigation; 2) the decision; and 3) the appeal. If a Respondent is found responsible for a violation of this policy, the decision will be referred to the appropriate process for discipline or corrective action.

      1. Overview of Standards and Process

        1. Timeframe for Completion of Formal Grievance Process; Extension for Good Cause: in most cases, the formal grievance process will be completed within ninety (90) business days.[14] The time period may be extended for good cause if necessary to conduct a thorough investigation, to protect the rights of all parties, or for other reasonable considerations, including absence of a party, a party’s advisor, or a witness, a parties’ reasonable requests for extension, or the need for language assistance or accommodation of disabilities. Parties will be sent written notice of any delay or extension, including the reason for the delay or extension.

        2. Equitable Treatment: all procedures, rules, and practices adopted as part of the formal grievance process will apply equally to both parties. Parties will simultaneously receive identical copies of all investigation reports and written decisions.

        3. Presumption of Non-Responsibility and Standard of Evidence: a respondent is presumed to be not responsible for the reported conduct until a determination regarding responsibility is made at the conclusion of the formal grievance process. The presumption may be overcome only where a preponderance of the evidence supports a finding that the respondent is responsible for violating this Policy.

        4. Standard of Proof: the standard of proof is “preponderance of evidence.” “Preponderance of the evidence standard” means that the respondent will be found responsible if, based upon all relevant evidence, it is “more likely true than not” that respondent is responsible for the reported conduct. If the evidence on a particular allegation is equally balanced, then that allegation is not “more likely true than not.” 

        5. Relevance: evidence is considered relevant if it tends to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in making a determination regarding responsibility. The investigator determines the relevancy of the evidence based upon the definitions and standards in this Policy.

        6. No Conflicts of Interest: the University does not allow conflicts of interest or bias for or against claimants or respondents generally or an individual claimant or respondent by the Executive/Director, investigators, or other persons making decisions regarding allegations under the ADP or related procedures. A conflict of interest exists when an individual’s knowledge of the matter or personal or professional relationship with a claimant, respondent, or witness would preclude the individual from being able to investigate or decide the case fairly and impartially. Any concern regarding bias or conflict of interest should be submitted to the Executive/Director immediately.

        7. Burden of Gathering Evidence: the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rests on the University and not on the parties.

        8. Medical Records and Other Privileged Evidence: the University cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a nurse practitioner, physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the University obtains that party’s voluntary, written consent to do so. OCR may redact and/or exclude other records or evidence that is protected by legally recognized privilege (e.g., attorney-client records, etc.) unless there is appropriate waiver or consent to use the evidence or record.[15]

        9. Permissive Discussions: this Policy does not restrict the ability of any party to discuss the allegations under investigation or to gather and present relevant evidence or witnesses. However, parties are prohibited from discussing or disseminating any case-related information in a manner that constitutes retaliation or violates FERPA[16]. Employees may not disclose FERPA-protected information regarding students.[17] In addition, parties should consider whether discussing allegations with a witness or another party would negatively impact the credibility of the witness or party.

      2. Investigation: the investigation is a neutral fact gathering process. The investigation shall be fair and impartial and not rely upon stereotypes or assumptions.

        1. Notice of Investigation (NOI): upon receipt of a signed formal complaint and within five (5) business days of sufficient notice of allegations,[18] OCR will notify the claimant(s) and the respondent(s), in writing, of the initiation of an investigation. In the notice of investigation, OCR will identify the parties; specify the date, time, location, and nature of the reported prohibited conduct, if known; identify potential policy violations; identify the investigator; explain the availability of supportive measures, confidential resources, and the right to an advisor of a party’s choosing (including the availability of University provided advisors); and an instruction to the parties to preserve any potentially relevant evidence. If new evidence is gathered during the investigation phase that changes the date, location or potential Policy violation as communicated in the initial notice of investigation, the notice of investigation will be updated, and the parties will be offered an additional opportunity to respond.

        2. Blend cases: If the NOI contains any potential violations of the Relationship Violence and Sexual Misconduct and Title IX Policy (e.g., gender-based harassment, sexual assault), then the formal grievance process under the RVSMTIX Policy will be followed, including the hearing and appeal procedures. 

        3. Meeting Notifications: the investigator will notify and seek to meet separately with the parties and third-party witnesses. OCR will provide written notice of the date, time, location, participants, and purpose of all investigative interviews, or other meetings, with sufficient time for the party to prepare to participate in a meaningful way. Sufficient time is determined on a case-by-case basis but generally is considered to be five (5) business days. During the initial meeting with claimant and respondent, the Investigator reviews policies and procedures. If the party provides information to OCR during an investigative interview or other meeting, the investigator will prepare a written summary and give the individual party five (5) business days to review and suggest corrections or provide additional information.

        4. Evidence Gathering: OCR is responsible for collecting evidence and determining the relevancy of any evidence collected or provided by the parties, or witnesses. Evidence may include but is not limited to, party and witness statements, documents, electronic communications, personnel files, supervisor files, HR files, RCPD files, etc. Individuals involved in a report of prohibited conduct should preserve evidence to the extent possible. Both claimant(s) and respondent(s) will have an equal opportunity to identify potential witnesses and provide any evidence or other information relevant to the investigation. Generally, evidence that is duplicative or cumulative is not relevant.

        5. Status Updates: the parties will receive regular, bi-weekly updates regarding the status of the investigation.

        6. Witness Statements: witnesses are persons believed to have information regarding an incident which may violate the Policy, including but not limited to someone present when the incident occurred, someone the claimant or respondent communicated with about the incident, and/or someone who may have information relevant to the incident. Witness participation in the investigatory process is voluntary. Witness statements may be considered as evidence as permitted by this Policy. Witnesses will be provided an opportunity to review the investigator’s summary of their interview. Witnesses are not notified of the outcome of an investigation. OCR only interviews witnesses believed to have relevant information, and thus may not interview all witnesses identified by a party or another witness. OCR may interview witnesses not identified by either party.

        7. Witnesses will have five (5) business days to review their written summaries and provide corrections or additional information. If a witness does not respond to their statement summary within five (5) business days, the statement may appear in the draft and final investigative reports as written.

        8. Review of Evidence and Draft Investigation Report: at the end of the investigation, the investigator will give each of the parties an equal opportunity to inspect and review all evidence that directly relates to the allegations in the formal complaint. The investigator will also provide the parties with a draft investigation report. Each party will have ten (10) business days to respond in writing to the evidence and the Draft Investigation Report, including submitting written, relevant questions that a party wants asked of any party or witness. The investigator will consider any written responses. If new evidence is obtained during the Draft Investigation Report review period, parties will be provided an opportunity to respond to any new evidence collected at this stage of the investigation process.

        9. Final Investigation Report: following the parties’ opportunity to review the evidence and Draft Investigation Report, the investigator will prepare a final written investigation report, which explains the reasons for determinations regarding responsibility, including findings of facts, conclusions about whether it “is more likely true than not” that respondent is responsible for the reported conduct, and the rationale for the results as to each allegation.

      3. Decisions and Sanctions/Discipline: both the claimant and the respondent will be notified concurrently, in writing, of the outcome, the rationale for the outcome, and the process to appeal the findings. Identical final reports will be issued to claimants, respondents, and administration. Divergent reports are prohibited.

        1. Students: If an investigation results in a determination that a student violated the ADP, the matter will be referred to the Office of Student Support and Accountability to determine the appropriate sanction.

        2. Employees: If an investigation results in a determination that an employee violated the ADP, the matter will be referred to Human Resources/Faculty and Academic Staff Affairs to determine the appropriate personnel action.                                                                 Institutional discipline for a finding of responsibility may be informed by the nature and the gravity of the misconduct. It may include, but is not limited to: warning, restitution, probation, suspension, dismissal, discharge, change of residence, disenrollment from a course, restriction on enrollment, termination of employment, no contact directives, trespass from campus, prohibition of participation in University programs or activities (which may include graduation), and/or other educational and employment discipline deemed appropriate. Staff, academic staff, and faculty may be subject to disciplinary action up to and including discharge.                                                                      Where there has been a finding of responsibility, remedies may be available for the claimant. Remedies are designed to restore or preserve a claimant’s equal access to the University’s education programs or activities and may include counseling, academic accommodations, academic support, or employment accommodations. Other remedies may include targeted or broad-based educational programming or training. The Office for Civil Rights and Title IX Education and Compliance is responsible for effective implementation of remedies.

      4. Appeals: claimant(s) and respondent(s) may file a written appeal regarding the determination of responsibility with the University’s Equity Review Officer on any of the following bases.

        1. Procedural irregularity that affected the outcome of the matter;

        2. New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter;

        3. The Executive/Director, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against claimants or respondents generally or the individual claimant or respondent that affected the outcome of the matter; and/or

        4. The written decision was arbitrary and capricious.                                                         Appeals must be submitted within ten (10) business days from the date that a written decision is issued, except where a student respondent is found to have violated the ADP, an appeal must be submitted within 10 days of written notice of the sanction decision. Where a sanction has been decided for a student, claimant(s) and respondent(s) may also file a written appeal on the grounds that the sanction is clearly inappropriate or is not commensurate with the seriousness of the offense.                                                              If an appeal is filed, the other part(ies) will have ten (10) business days to respond to the appeal in writing. The Investigator may also submit a written response to the appeal. The Equity Review Officer will review the appeal and any response(s) and issue a written decision within eighteen (18) business days of receiving the appeal documents, including any responses. The appeal decision will be issued simultaneously to all parties.                   The Equity Review Officer is a neutral professional who adjudicates appeals under this process.

      5. New Evidence Discovered After Time of Appeal: if new, previously unavailable evidence is discovered after an investigation has concluded, a final determination regarding responsibility has been made, and the time to appeal has expired, and the evidence is substantive and material to the case, OCR must re-open the formal grievance process. Any individual may submit newly discovered evidence to OCR, along with a statement explaining why the evidence was previously unavailable despite reasonable diligence to identify relevant evidence earlier. OCR will decide whether the evidence was previously unavailable and is substantive and material to the case. If so, OCR will re-open the matter.

    13. Documentation: The University will document actions it takes in response to reports or formal complaints at each stage of the investigation and grievance process and will clearly identify all of the actions it takes that are responsive to reports or formal complaints. The University will maintain such records for a minimum of seven years.

    14. Options for External Resolution: there are external options for pursuing or resolving complaints of discrimination or harassment. OCR’s process is not altered by an individual’s choice to utilize an external agency’s services. Refer to individual agencies for information about their complaint procedures.

    • Externally, employment related discrimination complaints may be filed with:

      • Equal Employment Opportunity Commission

      • Phone: (800) 669-4000

      • TTY: (800) 669-6820

      • www.eeoc.gov  

    • Michigan Department of Civil Rights

    • Externally, education related discrimination complaints may be filed with:

      • Office of Civil Rights, U.S. Department of Education

    1350 Euclid Avenue, Suite 325
    Cleveland, OH 44115-1812
    Telephone: (216) 522-4970
    FAX: (216) 522-2573
    TDD: (800) 877-8339
    Email: OCR.Cleveland@ed.gov

    • Union Represented Employees: union represented employees should also consult their collective bargaining agreements and speak to a union representative about the appropriate process for bringing complaints of discrimination or harassment, or consult the MSU Office of Human Resources, Employee Relations: 1407 S. Harrison, Suite 130, East Lansing, MI 48823, 517-353- 5510.

  • VI.  VIOLATIONS
    Employees or students who violate this policy may be subject to discipline up to and including termination and/or dismissal from the University.[19] 
  • VII.  RELATED INFORMATION AND ATTACHMENTS
    1. Anti-Discrimination Policy Investigation Standards Guide (explains how the prohibitions in the ADP will be applied and sets forth the standards for evaluating reports of possible violations)
    1. Other Policies Enforced by the Office for Civil Rights and Title IX Education and Compliance:
    1. Policies Enforced Outside of OCR:
    1. Additional University Units with Process/Resolution
    1. Accountability for Misconduct at the University

    Many forms of misconduct can be reported using MSU’s Misconduct Hotline. More information about forms of misconduct, and the MSU offices responsible for investigation of them is available on the hotline web page.

    • Athletics
    • Conflicts of Interest
    • Employment
    • Fiscal Misconduct
    • Hazing
    • Medical and HIPAA
    • Other
    • Privacy
    • Research
    • Retaliation
    • Safety
    • Student issues
    • Youth programs
  • VIII.  HISTORY

     

    Action

    Description

    Issued:

    1.  Office of Audit, Risk and Compliance

    Approved by:

    1.  President, Kevin M. Guskiewicz 

    Revised:

    1.  This policy was approved by the Board of Trustees on April 9, 1993 and revised on December 5, 2003, April 13, 2007 and October 30, 2015. 

     

    2.  On September 8, 2023, by action of the Board of Trustees, this policy (formerly BOT policy number 02-03-01) was moved from a Board of Trustees policy to a University-wide policy. 

     

     

    [1] “Campus” includes all University owned property.

    [2] A person with administrative responsibility for a policy, procedure, or action may be designated to respond to a complaint on behalf of an RSO or unit but will not be named a “Respondent.”

    [3] Concerns related to English proficiency requirements for admission to the University will not be evaluated under the ADP.

    [4] MSU and its data systems use the term “sexual identity.”

    [5] See the Anti-Discrimination Policy Investigation Standards Guide for additional information about the standards for evaluating reports of possible violations.

    [6] Current interpretation of the First Amendment requires the University to allow registered student organizations with a religious purpose to impose membership and leadership eligibility requirements based on religion. Eligibility requirements based on gender are also permitted as specified by Title IX regulations (i.e. social fraternities and sororities that meet certain criteria; acapella groups and other choruses; competitive or contact sports teams). In addition, English language proficiency may be required as a bona fide qualification for acceptance in a University program or employment and/or within certain aspects of a University program or employment. Lastly, Title VII permits Bona Fide Occupational Qualifications (BFOQs) on the basis of sex, religion or national origin in rare circumstances when reasonably necessary to carry out a particular job function in the normal operation of an employer's business or enterprise.

    [7] A finding of a no violation in the underlying investigation that gave rise to the report of retaliation, or a closure prior to the formal process does not negate the University’s obligation to respond to reports of retaliation and retaliatory harassment. 

    [8] https://msu.edu/freespeech/ 

    [9] https://oarc.msu.edu/clery/.

    [10] Faculty and Academic Staff Affairs (FASA), Office of Employee Relations (OER), Office for Civil Rights and Title IX Education and Compliance (OCR), MSU Office of Health Sciences (OHS), MSU Health Care Inc. (HCI)

    [11] MCL § 388.1841b(2)(f).

    [12] The Clery Act requires the University to annually disclose campus crime statistics, including hate crimes (certain criminal offenses and incidents of larceny-theft, assault, intimidation, or destruction/damage/vandalism to property that were motivated by bias). 

    [13] As this is not a legal proceeding, OCR will not require or allow briefings, memos, or motions from the parties or their advisors, other than the response to the draft or final investigation report.

    [14] This timeline does not include appeals.

    [15] OCR may also redact and/or exclude evidence if it identifies risk that it may have been illegally obtained.

    [16] https://reg.msu.edu/roinfo/notices/privacyguidelines.aspx.

    [17] https://hr.msu.edu/policies-procedures/support-staff/support-staff-handbook/ss-handbook/ordinances-policies/ferpa.html.

    [18] If the signed formal complaint does not contain sufficient information as to parties, date, time, location, and nature of reported prohibited conduct to provide meaningful notice to respondent(s), then OCR may need to collect additional information prior to sending the NOI. In this instance, OCR may conduct an interview with the claimant and/or may ask the claimant to amend their formal complaint, but an amended complaint is not required so long as OCR obtains sufficient information to draft the NOI. Either way, OCR will send the NOI within 5 business days of obtaining information sufficient to draft the NOI.

    [19] The University may be limited in its ability to enforce this Policy when an unaffiliated individual is found to have violated this Policy