Administrative Policies and Procedures Manual - Policy 2730: Sexual Harassment
Date Originally Issued: 08-09-1988
Revised: 10-26-1994, 05-21-2014
Authorized RPM 2.5 (“Sexual Harassment”)
Process Owner: Director, Office of Equal Opportunity
Note: This policy was formerly numbered UAP 3780.
The University is committed to creating and maintaining a community in which students and employees can learn and work together in an atmosphere that enhances productivity and draws on the diversity of its members and is free from all forms of disrespectful conduct, harassment, exploitation, or intimidation, including sexual harassment and sex-based discrimination. The purpose of this policy is to guide University officials to take whatever action may be needed to prevent, correct, and, when necessary, to discipline behavior which violates this policy. In fulfilling the dual tasks of educating and providing public service, the University can, and shall, demonstrate leadership in eliminating sexual harassment and preventing its recurrence. Sexual harassment subverts the mission of the University and threatens the careers of students and employees. It is a violation of Title VII of the Civil Rights Act of 1964; Title IX of the Educational Amendments of 1972; and the New Mexico Human Rights Act, NMSA 1978, Sections 28-1-1 to 28-1-7, 28-1-7.2, 28-1-9 to 28-1-14.
Sexual harassment, a form of sex discrimination, is defined as unwelcome conduct of a sexual nature. There are two typical types of sexual harassment: quid pro quo and hostile environment. Conduct of a sexual nature becomes a violation of this policy when:
- submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment or academic advancement (quid pro quo);
- submission to or rejection of such conduct by an individual is used as the basis for employment decisions or academic decisions affecting such individual (quid pro quo); or
- such conduct has the purpose or effect of unreasonably interfering with an individual's work or academic performance or creating an intimidating, hostile, or offensive working or academic environment (hostile environment).
While sexual harassment often takes place in a situation of power differential between the persons involved, this policy recognizes that sexual harassment also may occur between persons of the same University status: student-student, faculty-faculty, and staff-staff, or between peers. Additionally, the prohibition against sexual harassment applies regardless of the genders of the parties. Sometimes harassers target a person who has authority over them. Harassers can also be persons who are not members of the University community, such as contractors or visitors. Regardless of the source, the University does not tolerate this kind of behavior and the University is committed to maintaining an environment free from sexual harassment.
Sexual harassment is especially serious when it threatens relationships between students and teachers, or relationships between supervisors and their subordinates. Through grades, wage increases, recommendations for graduate study, promotion, and the like, a teacher or supervisor can have a decisive influence on a student's or employee's success and future career at the University and beyond.
2.1. Other Violations
The University also disapproves of conduct of a sexual nature which does not rise to the level of the above definition of sexual harassment but which has a detrimental, although limited, impact on the work or academic environment. The University strongly encourages all persons witnessing or experiencing such conduct to report it (see Section 3) so that the University can take appropriate action. Such conduct may include isolated sexual remarks, sexist comments, gestures, or inappropriate physical behavior of a sexual nature. This could warrant remedial action in order to prevent such behavior from becoming unlawful harassment.
2.2. Examples of Sexual Harassment
Listed below are examples of behavior that can constitute sexual harassment. The list is not all-inclusive; in addition, each situation must be considered in light of the specific facts and circumstances to determine if harassment has occurred.
- Suggestive or obscene letters, notes, invitations
- Electronic communications, such as e-mail, text messaging, and Internet use, that are sexual in nature
- Unwelcome sexual jokes or comments (including favorable comments about someone’s gender, body, or appearance)
- Impeding or blocking movements, touching, or any physical interference or stalking
- Sexually oriented gestures; or displaying sexually suggestive or derogatory objects, pictures, cartoons, or posters
- Threats or insinuations that refusal to provide sexual favors will result in reprisals; withholding support for appointments, recommendations, promotions, or transfers; or change of assignments or poor performance reviews or grades
- Sexual or gender-based violence, including, but not limited to, rape, sexual assault, sexual battery, and sexual coercion
In determining whether the alleged conduct constitutes sexual harassment, the totality of the circumstances will be considered, including the frequency of the discriminatory conduct; its severity; and whether it is physically threatening, humiliating, or pervasive to the environment. When the University determines that a hostile environment exists, it takes action to stop the harassment and ensure it does not happen again.
In some cases, a single incident (such as sexual assault) may be so severe as to create a hostile environment. Such incidents may include injury to persons or property, or conduct threatening injury to persons or property. In other cases, the conduct at issue is offensive, but not sufficiently severe, persistent, or pervasive as to constitute a hostile work or learning environment. In such cases, the University generally takes action to stop the offending behavior in an effort to promote a respectful environment and avoid the possibility that a hostile environment will develop.
In cases of alleged harassment, the protections of the First Amendment must be considered if issues of speech or expression are involved. Free speech rights apply in the classroom and in all other education programs and activities. This policy is intended to protect students and employees from discrimination, not to regulate the content of speech.
2.3. Interim Measures
The University may also implement interim measures or interventions, as appropriate to the allegations and if the allegations warrant, to protect the community and students involved, pending the culmination of any review, investigation, or appeal process. If the review, investigation or appeal process determines that there is no cause to believe this policy has been violated, these interim measures may be revoked.
3. Reporting Procedures
Persons who believe they may have experienced sexual harassment may report the incidents to any of the following:
- Office of Equal Opportunity (OEO)
- Dean of Students
- Human Resources
- Ombudsperson (the Ombudsperson serves as a resource for discussing concerns and University processes; reports to the Ombudsperson are confidential and are not shared with University officials or other departments)
- their supervisor or manager
- director, chair, or dean of a department, school, or college
- Internal Audit
- UNM Compliance Hotline (call or online report may be anonymous, but doing so may limit a person’s protection from retaliation and the University's ability to conduct a full investigation)
The University can take corrective action only when it becomes aware of problems. Therefore, the University encourages persons who believe that they have experienced or witnessed discrimination or harassment as prohibited by this policy to come forward promptly with their inquiries, reports, or complaints and to seek assistance within the University. Individuals also have the right to pursue a legal remedy for discrimination or harassment that is prohibited by law, in addition to or instead of proceeding under this policy.
The University will handle discrimination and harassment complaints under this policy consistent with procedural guidelines developed to ensure prompt and equitable resolution of such complaints. The matter will then proceed to investigation or other form of effective and fair review. The investigation or review may be performed by OEO, or jointly with another office, as determined by OEO.
Possible outcomes of an investigation are (1) a finding that the allegations are not warranted or could not be substantiated, (2) a finding that the allegations are substantiated and constitute discrimination or inappropriate behavior and, if so, (3) referral to the appropriate administrative authority for corrective action.
3.1. Reporting Responsibility
University faculty, administrators, and supervisors who witness or receive a written or oral report or complaint of sex discrimination, sexual harassment, or sexual violence are required to engage in appropriate measures to prevent violations of this policy and promptly notify OEO, including notification of any actions taken to achieve informal resolution of the complaint. The University relies on its employees to notify the University’s Title IX Coordinator of all disclosures of sex discrimination, sexual harassment, and sexual violence against students.
Further, if a supervisor fails to take action when he or she knows, or reasonably should have known, that a student or a subordinate employee is being subjected to sexual harassment, that supervisor could be held in violation of this policy. The University encourages reporting of all known or suspected unwelcome conduct of a sexual nature.
This section of the policy does not obligate an individual who is required by professional or University responsibilities to keep certain communications confidential (e.g., licensed healthcare professional) to report confidential communications received while performing those University responsibilities.
3.2. Reporting Sexual Violence
In addition to violating Title IX and University policy, some forms of sexual harassment may constitute criminal activity. The University encourages individuals who have experienced unwelcome sexual behavior that involves sexual violence or threatening behavior to contact the UNM Police Department (505-277-2241) or local law enforcement agencies (911), as soon as possible after the offense occurs in order to preserve evidence necessary for the proof of criminal offenses. The UNM Police Department is available to assist victims in filing reports with other area law enforcement agencies. Persons who experience sexual violence may participate concurrently in a criminal process and University process to seek redress.
The University recognizes that individuals have a right to privacy; however, the University also has an obligation to address concerns and inquiries, as well as to investigate and resolve civil rights claims. Therefore, the University cannot guarantee anonymity to persons raising concerns. The University may not be able to fully address allegations received from anonymous sources or those requesting anonymity, unless sufficient information is furnished to enable the University to conduct a meaningful and fair investigation. All complaints will be handled in a confidential manner to the extent possible and consistent with principles of due process. Information will only be shared among University employees or external parties on a need-to-know basis and as permitted under University policy and applicable federal and state law.
All participants involved with an internal discrimination or harassment investigation have a strict duty to keep investigation information confidential. Any attempt by any participant to influence the outcome of an investigation by divulging information to others (who have no legitimate “need to know”) is grounds for disciplinary action.
Persons may request anonymity when reporting sexual harassment. OEO will evaluate the anonymity request in the context of the University’s responsibility to provide a safe and nondiscriminatory work and learning environment. OEO will strive to abide by a complainant's request for anonymity. However, when complainants continue to insist that their identity not be disclosed to the named respondent or alleged harasser, the complainant will be advised that an in-depth investigation might not be possible, depending on the circumstances presented in the claim. While not routinely done, OEO reserves the right to disclose a person’s identity when absolutely necessary to fulfill the University’s obligations under anti-discrimination laws and regulations or when legally required to do so.
It is the policy of the University to foster an environment where faculty, staff, and students 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 of the offices listed above (Section 3), filing a claim of discrimination or harassment, or participating as a witness in an investigation related to an allegation of discrimination or harassment.
Students and employees who believe that retaliation was threatened, attempted, or occurred due to their testifying, assisting, or participating in an investigation related to an allegation of discrimination and or harassment should report the retaliation to any of the offices listed above (section 3). An employee or student who retaliates against a person for raising or filing a discrimination or harassment complaint or for seeking assistance from OEO may be subject to disciplinary action.
6. 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 employees or students when it has been 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, may be subject to disciplinary action.
7. Related Policies and Resources
RPM 2.3 ("Equal Opportunity and Affirmative Action for Employees and Students")
RPM 2.5 ("Sexual Harassment")
UAP 2200 (“Whistleblower Protection and Reporting Suspected Misconduct and Retaliation”)
UAP 2215 ("Consensual Relationships and Conflicts of Interest")
UAP 2310 ("Academic Adjustments for Student with Disabilities")
UAP 2720 (“Equal Opportunity, Non-Discrimination, and Affirmative Action”)
UAP 3110 ("Reasonable Accommodation for Employees with Disabilities")
UNM Student and Visitor Codes of Conduct
Accessibility Resource Center
Office of Equal Opportunity
Discrimination Claim Procedures
Dean of Students
Center for Academic Program Support
Counseling, Assistance, and Referral Service
Ombuds/Dispute Resolution Services for Faculty
Ombuds/Dispute Resolution Services for Staff
Student, Health, and Counseling
Women’s Resource Center
Rape Crisis Center of New Mexico
New Mexico Coalition Against Domestic Violence