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UNM Policy Office

MSC05 3357
1 University of New Mexico
Albuquerque, NM 87131

Physical Location:
Scholes Hall
114 A and B

Phone: (505) 277-6531

Administrative Policies and Procedures Manual - Policy 2720: Prohibited Discrimination and Equal Opportunity

Date Originally Issued: 09-27-1991
Revised: 12-13-1991, 01-15-2007, 05-21-2014, 02-26-2018

Authorized by RPM 2.3 ("Equal Opportunity and Affirmative Action for Employees and Students")
Process Owner: Director, Office of Equal Opportunity

Note: This policy was formerly numbered UAP 3100.

1. General

The University of New Mexico is committed to providing a safe and inclusive environment that draws on the diversity of its members. The University prohibits discrimination, harassment, or related retaliation based on protected class (as defined in Section 2) in any educational and work environment. It is critical to this commitment that anyone who experiences, witnesses, or is aware of such discrimination , harassment, or retaliation report the behavior pursuant to Section 9 below.

The University is committed to providing equal opportunities and accessibility to individuals with disabilities. Consistent with federal and state law, individuals with disabilities are entitled to access, support, reasonable accommodation, and academic adjustments.

The University is committed to protecting rights during pregnancy and provides necessary accommodations to students and employees (faculty, staff, and student employees) affected by pregnancy or childbirth in the same manner as other individuals unable to work or participate in their work or education because of their physical condition.

The University is committed to providing reasonable accommodation for the religious beliefs and practices of its students and employees.

The University is committed to fostering an environment of inclusiveness that respects an individual’s preferred form of self-identification, including a name other than a legal first name and preferred pronoun. This policy prohibits gender-based discrimination, including discrimination based on gender-identity or expression and affirms the right of individuals to use the gender-specific facilities consistent with their gender identity.

The University is committed to inclusive excellence and diversity and seeks to take advantage of the rich backgrounds and abilities of everyone. The University, as an equal opportunity/affirmative action employer, complies with all applicable federal and state laws regarding nondiscrimination and affirmative action. It makes good faith efforts to recruit, hire, and promote qualified women, minorities, individuals with disabilities, and veterans.

The Office of Equal Opportunity (OEO) is the independent, impartial, and neutral campus entity designated to ensure compliance with this policy and other polices that apply to civil rights. The OEO reports directly to the University President to maintain optimal independence and impartiality. The OEO investigative process can be accessed here.

2. Definitions

  1. “Protected class” means those personal traits or characteristics, statuses, and/or beliefs that are defined by applicable law and policy as protected from discrimination or harassment including age, ancestry, color, ethnicity, gender, gender identity (including gender expression), genetic information, national origin, physical or mental disability, pregnancy, race, religion, serious medical condition, sex, sexual orientation, spousal affiliation, and veteran status.

  2. “Discrimination” prohibited by this policy means conduct based on a protected class that excludes an individual from participation in, denies the individual the benefits of, treats the individual differently than similarly-situated individuals who are not in the protected class or otherwise adversely affects a term or condition of an individual’s employment, education, living environment, or participation in a University program or activity.  Differential treatment and harassment that creates a hostile environment based on an individual’s membership in a protected class are types of discrimination prohibited by this policy.

  3. “Differential treatment” occurs when people, whether an individual or a group, are treated differently than similarly-situated individuals who are not in their protected class because of their membership in the protected class.

  4. “Harassment” prohibited by this policy is unwelcome conduct based on a protected class and can include, but is not limited to, slurs or epithets, graphic or written statements, or other behavior that may be physically threatening, harmful, or humiliating.  Harassment violates this policy when it creates a hostile environment, as defined below.

  5. “Sexual harassment” or “sexual misconduct” – See UAP 2740 (“Sexual Misconduct”) for definitions.

  6. “Hostile environment” exists when harassment is sufficiently serious (i.e., severe, pervasive, or persistent) and objectively offensive so as to deny or limit a person’s ability to participate in or benefit from the University’s programs, services, opportunities, or activities; or when such conduct has the purpose or effect of unreasonably interfering with an individual’s employment. Mere offensiveness is not enough to create a hostile environment.  In determining whether harassment has created a hostile environment, consideration will be made not only as to whether the conduct was unwelcome to the person who feels harassed, but also whether a reasonable person in a similar situation would have perceived the conduct as objectively offensive.  Harassment that creates a hostile environment is prohibited by this policy.

  7. “Retaliation” means any action by an accused individual (i.e., respondent) or by a third party to seek retribution or take materially adverse action against any individual or group of individuals involved in filing a complaint or report under this policy, filing an external civil rights complaint, participating in the investigation of a complaint or report under this policy, or reasonably opposing conduct made unlawful by this policy. This includes action taken against a bystander who intervened to stop or attempt to stop discrimination, harassment, or sexual misconduct.  Retaliation includes intimidating, threatening, coercing, or in any way discriminating against an individual or group because of their complaint or participation.

  8. “Preferred pronoun” means a pronoun that a person chooses to use or have used for self-identification (e.g., she, her, hers, he, him, his, ze, they).

  9. “Gender identity” means  one’s internal sense of gender identity, which may be different than the assigned sex at birth.

  10. “Gender expression” means  gender characteristics or gender identity that may or may not conform to gender stereotypes about masculinity or femininity.

  11. “Reasonable accommodation” means any reasonable adjustment to a job, academic, or educational environment that provides equal opportunities to individuals with disabilities or serious medical conditions, or for the religious observances, beliefs, and practices of its students and employees.

  12. “Undue hardship” is determined through a consideration of the following factors (see Section 3.3 of UAP 3110 (”Reasonable Accommodation for Employees With Disabilities”)):

    • the impact of the accommodations on departmental and University operations and delivery of services, 
    • the nature of the accommodations and cost in relation to the University's total budget, 
    • the number of University employees, and 
    • the number, type, and location of facilities.

3. Prohibited Discrimination

Discrimination including differential treatment and harassment that creates a hostile environment is strictly prohibited by this policy.

3.1. Differential Treatment

The University expects all members of the University community, as well as its visitors, will be treated equitably, in all aspects of its educational programs and activities and employment. Listed below are examples of conduct that can constitute discrimination based on differential treatment. This list is not all-inclusive; in addition, each situation must be evaluated in light of the specific facts and circumstances to determine if discrimination has occurred.

  • Singling out or targeting persons for different or adverse treatment (e.g., more severe discipline, unfair grade, lower salary increase, negative performance evaluation, or termination) because of their protected class.
  • Preventing persons from using University facilities or services because of their protected class.
  • Denying persons access to educational programs based on their protected class.
  • Failing to provide reasonable accommodations for qualified individuals with disabilities or serious medical conditions or for religious holidays or observances.
  • Treating persons differently because they do not conform to specific gender expressions. 

3.2.  Harassment

The University prohibits harassing behavior based on protected class that creates a hostile environment.  Listed below are examples of harassing behavior that may violate policy when the conduct is sufficiently severe, persistent, or pervasive; is both objectively and subjectively offensive; and unreasonably interferes with an individual’s educational and work environment. The list is not all-inclusive; in addition, each situation must be considered in light of the specific facts and circumstances to determine if a violation of policy has occurred.

  • Disparaging remarks to a person about a protected status (e.g., negative or offensive remarks or jokes about a person's religion or religious garments).
  • Electronic communications, such as e-mail, text messaging, and Internet use, that violate this policy.

4. Gender Identity

4.1.  Preferred or Affirmed First Names and Pronouns

This policy prohibits discrimination and harassment based on gender identity or gender expression. Individuals shall not be required to obtain a court-ordered name change before they may be addressed by the first name and pronoun that corresponds to their gender identity. The University is committed to using preferred or affirmed names and pronouns wherever possible in the course of University business and education.

Members of the University community are expected to make reasonable efforts to address individuals by a pronoun corresponding to their gender identity upon request. Individuals may not be subjected to unwelcome questions or invasive requests for documentation related to their gender identity.

The intentional or persistent refusal to respect a preferred or affirmed name or pronoun can constitute discrimination or harassment that is a violation of this policy. This policy does not prohibit inadvertent slips or mistakes in using an individual’s preferred or affirmed name or pronoun.

4.2. Gender-Specific Facilities

Individuals shall be provided access to designated gender-specific facilities consistent with their gender identity.

5. Freedom of Speech and First Amendment Protection

This policy is not intended to inhibit or restrict free speech or the expression of ideas. In cases of alleged harassment or discrimination, the protections of the First Amendment must be considered if issues of speech or expression are involved.

6.  Hate/Bias Crimes and Incidents

A hate crime is a crime committed in whole or in part because of the victim's actual or perceived race, religion, color, national origin, ancestry, age, disability, gender, sexual orientation, or gender identity. Under New Mexico state law, hate crimes are "motivated by hate," meaning the commission of a crime with the intent to commit the crime because of the actual or perceived race, religion, color, national origin, ancestry, age, disability, gender, sexual orientation, or gender identity of the victim, whether or not the offender's belief or perception is correct. NMSA 1978, Section 31-18B-1). A person who has experienced a hate crime should report the crime to the University of New Mexico Police Department by calling 277-2241 or 911 in case of emergency or by filing a hate crime report on the police website.

A hate/bias incident is an act of conduct, speech, or expression to which a bias motive is evident as a contributing factor (regardless of whether the act is criminal). All hate crimes are bias incidents but not all bias incidents are hate crimes. A hate/bias incident may also be a violation of this policy and should be reported to the OEO or reported via the hate/bias reporting form on the OEO website.

7. Reasonable Accommodation

The University makes reasonable accommodations for students, employees, and prospective students and employees in accordance with federal and state regulations. Assessing and determining appropriate and effective reasonable accommodations must be done on a case by case basis. Failure to accommodate can constitute discrimination in some instances. Anyone seeking to file a claim for failure to provide an accommodation in the academic and/or work environments should contact the OEO.   

7.1. Reasonable Accommodation for Religious Observances, Beliefs, and Practices

The University makes reasonable accommodations for religious observances, beliefs, and practices for students, employees, and prospective students and employees.  Reasonable accommodations are made for students unless such accommodations have the end result of altering educational requirements of a course or program, or place an undue hardship on the operations of the University.  Reasonable accommodations are made for faculty and staff unless such accommodations have the end result of significantly disrupting the efficiency or effectiveness of the workplace, fundamentally altering the essential functions of a job, or placing an undue hardship on the University.  Failure to accommodate religious observances and practices can constitute discrimination on the basis of religion in some instances and each case will be evaluated in light of the totality of the circumstances. Persons seeking religious accommodation should contact the OEO if assistance is needed.

7.2. Reasonable Accommodation for Individuals with Disabilities and Serious Medical Conditions

The University is committed to providing equal opportunities to individuals with disabilities. The University makes reasonable accommodations for students, employees, and prospective students and employees. The University makes reasonable accommodations for the physical and mental disabilities of a student unless an accommodation has the end result of fundamentally altering the nature of the course or program, or places an undue hardship on the operation of the University. The University makes reasonable accommodations for the physical or mental disabilities of an employee or applicant unless such accommodations have the end result of fundamentally altering the essential functions of a job or place an undue hardship on the operation of the University.

Failure to accommodate can constitute discrimination on the basis of disability in some instances.  Students should refer to UAP 2310 ("Academic Adjustments for Student with Disabilities") for guidance on requesting accommodations and should contact the University Accessibility Resource Center for assistance. Employees, including undergraduate and graduate student employees, should refer to UAP 3110 ("Reasonable Accommodation for Employees with Disabilities") for guidance on requesting workplace accommodations and initiating an interactive dialogue with their immediate supervisor or manager.

The Director of the OEO has been designated as the University’s Americans with Disabilities Act (ADA) Coordinator. Any applicant, employee, or visitor needing guidance on seeking a reasonable accommodation for disability should contact the Director of the OEO. Once an accommodation has been put into place, the accommodation should be registered with the ADA Coordinator for tracking and implementation purposes. In addition, any students, employees, and applicants who feel that they have been denied a reasonable accommodation can file a complaint with the OEO pursuant to section 13 below.

7.3. Pregnancy Accommodation

The University is committed to protecting the rights of expecting persons and makes reasonable accommodations for pregnancy, lactation, and conditions related to pregnancy for students, employees, and prospective students and employees. The University makes accommodations for expectant students unless an accommodation has the end result of fundamentally altering the nature of the course or program, or places an undue hardship on the operation of the University. The University makes accommodations for expectant employees or applicants unless such accommodations have the end result of fundamentally altering the essential functions of a job or place an undue hardship on the operation of the University. Students, employees, and applicants should contact the OEO if assistance is needed.

8. Reporting Procedures, Investigations, and Disciplinary Procedure

It is the policy of the University to prevent and eliminate forms of unlawful discrimination in employment and educational settings.  Persons who believe they have been discriminated against on the basis of a protected class are encouraged to contact the OEO. The OEO follows its Discrimination Claims Procedure (DCP) when addressing and investigating claims of discrimination. The DCP describes the procedures that apply when a complaint is filed pursuant to this section.

In some instances, the behavior at issue may be harassing, but not sufficiently severe, persistent, or pervasive as to constitute a hostile work or learning environment.  In such cases, the University may take steps to protect the safety and welfare of the students and employees involved and/or campus community by offering supportive measures, requiring training, or other informal processes.  Information on these informal processes are in the DCP.

All reports of discrimination on the basis of sex must be reported according to UAP 2740 (“Sexual Misconduct”).

The Pathfinder’s Student Code of Conduct and Visitor Code of Conduct describe the disciplinary processes and procedures that may apply after an investigation pursuant to this section is complete and a finding is made that this policy was violated by a student or visitor. Faculty Handbook Policy D176 (“Graduate Student Grievance Procedures”) describes the disciplinary processes and procedures that may apply after an investigation pursuant to this section is complete and a finding is made that this policy was violated by a graduate or professional student.

UAP 3215 (“Performance Management”) describes the disciplinary processes and procedures that may apply after an investigation pursuant to this section is complete and a finding is made that this policy was violated by a staff member.

Faculty Handbook Policy C07 (“Faculty Discipline”) describes the disciplinary processes and procedures that may apply after an investigation pursuant to this section is complete and a finding is made that this policy was violated by a faculty member.

9. Reporting Responsibility

When University faculty, administrators, and supervisors witness or receive a written or oral report or complaint of discrimination or harassment, they are required to promptly notify the OEO.  The University relies on its employees to notify the  OEO of all disclosures of discrimination and harassment as defined in this policy.  The University encourages all members of the University community to report all known or suspected discriminatory conduct. The University can take corrective action only when it becomes aware of issues. Therefore, it encourages persons who believe they have witnessed or experienced discrimination or harassment to come forward promptly with their inquiries, reports, or complaints. Nothing in this policy impedes individuals’ rights to pursue legal remedies or to contact outside administrative civil rights agencies in addition to the remedies provided in this policy.

This section of the policy does not obligate licensed healthcare professionals and other persons, who are required by professional or University responsibilities, to keep certain communications confidential, to disclose those confidential communications.

9.1.  Supervisors

Supervisors shall report all known or suspected discriminatory conduct to the OEO. If supervisors fail to notify the OEO when they know, or reasonably should have known, that a student or subordinate employee is being subjected to discrimination, supervisors could be held in violation of this policy. Additionally, supervisors should manage their workplaces to ensure that they are fair and equitable.

10. Confidentiality

The University recognizes that individuals have a right to privacy; however, the University also has an obligation to address concerns and inquiries, to investigate and resolve civil rights claims, and to comply with state and federal disclosure rules, regulations, and laws. All complaints will be handled in a confidential manner to the extent possible and consistent with principles of due process. Information will be shared only among University employees or external parties on a need-to-know basis and as permitted under University policy and permitted or required by applicable federal and state law. 

11. Retaliation

It is the policy of the University to foster an environment where individuals may raise civil rights claims without fear of retaliation or reprisal. All members of the University community have a right to redress for perceived violations of this policy.  It is contrary to federal and state civil rights laws, and to University policy, to retaliate against any persons for asserting their civil rights, which includes raising concerns related to civil rights, reporting to any University office charged with addressing such complaints, filing a claim of discrimination or harassment, or participating in an investigation related to an allegation of discrimination or harassment.

Allegations of civil rights retaliation should be reported to the OEO. Retaliation is grounds for a subsequent complaint and may result in disciplinary action against the persons committing the retaliatory acts. Listed below are examples of behavior that can constitute such retaliation. The list is not all-inclusive; in addition, each situation must be considered in light of the specific facts and circumstances to determine if retaliation has occurred.

  • Work related threats, warnings, or reprimands.
  • Transfers to less prestigious work hours or duties.
  • Engaging in activity that is likely to deter reporting pursuant to this policy.
  • Trying to improperly influence or intimidate a witness or other party’s involvement in the OEO process.

12. Providing False Information

Because of the nature of discrimination, harassment, or retaliation complaints, allegations often cannot be substantiated by direct evidence other than the complaining individual’s own statement. Lack of corroborating evidence should not discourage individuals from seeking relief under this policy. No adverse action will be taken against an individual who makes a good faith allegation of discrimination, harassment, or retaliation under this policy, even if an investigation fails to substantiate the allegation.  

Notwithstanding this provision, the University may discipline students or employees when it is determined that they brought an accusation of discrimination or harassment in bad faith or with reckless disregard of the truth or falsity of the claim. Additionally, anyone participating in an investigation who intentionally misdirects an investigation, whether by falsehood or omission, will be subject to disciplinary action.

13. Equal Opportunity and Affirmative Action

The University recognizes its responsibility to extend equal employment and educational opportunities to all qualified individuals and will not discriminate against any applicant or employee based on protected class. The University has a responsibility to its students and to the citizens of the State to actively recruit, hire, and retain the best-qualified persons possible, and to do so in the context of its commitment to affirmative action principles.

Further, the University commits itself to a program of affirmative action to increase access by, and participation of, traditionally underrepresented groups, including women, minorities, individuals with disabilities, and veterans.  OEO provides guidance and assistance to the University leadership in identifying effective recruitment and retention strategies to meet its affirmative action responsibilities. This includes monitoring or auditing all employment activity for staff and faculty at the University.

13.1. Responsibility for Affirmative Action Plan

Executive Order 112446 requires the University to create a written Affirmative Action Plan (AAP) that measures whether women, minorities, individuals with disabilities, and veterans are being employed at the expected rate given their composition of the relevant labor pool, and set goals when they are not.

The Director of OEO has been designated as the Affirmative Action Coordinator.  This official is responsible for gathering data for the AAP, monitoring, or auditing all of the University’s equal employment opportunity and affirmative action activities, reporting annually on the effectiveness of the University’s affirmative action programs, and developing recommendations for necessary action to assure attainment of the University’s stated objectives. Any questions related to the AAP should be directed to the OEO.

The University President has overall responsibility for the AAP. All senior and mid-level administrators (vice presidents, deans, directors, department heads) are accountable for their performance in the accomplishment of affirmative action goal objectives and action oriented plans, and for ensuring that all recruitment, applications, and hiring processes are consistent with state and federal law and with AAP objectives. Human Resource professionals and search and interview committees should adhere to all applicable recruitment and hiring guidelines, affirmative action and diversity principles and regulations, and AAP goals and initiatives. All University data stewards are responsible for providing accurate, verified, and timely data for the annual AAP. 

14. References

14.1.  Related Policies

14.2. Resources and Contacts

14.3. Applicable Laws      

  • The Equal Pay Act of 1963
  • Titles IV, VI, and VII of the Civil Rights Act of 1964
  • Title IX of the Education Act of 1972
  • The Rehabilitation Act of 1973 (Sections 503 and 504)
  • The Vietnam Era Veterans Readjustment Assistance Act (1974)
  • Age Discrimination Act (1975)
  • Pregnancy Discrimination Act (1978)
  • The Americans with Disabilities Act (ADA) of 1990; Amendments Act of 2008
  • Executive Order 11246
  • Uniform Services Employment and Reemployment Act (1994)
  • Violence Against Women Act of 1994
  • Violence Against Women Reauthorization Act of 2013
  • The New Mexico Human Rights Act