November 23, 2004 (Special meeting)

The University of Toledo
406th Meeting
Special Meeting of the Board of Trustees
Tuesday, November 23, 2004
Student Union - Room 2592 - 5:00 p.m.

The four hundredth and sixth meeting of the Board of Trustees of The University of Toledo was held on Tuesday, November 23, 2004 at 5:00 p.m. in Room 2592 of the Student Union, 2801 W. Bancroft Street, Toledo, Ohio.

Daniel J. Brennan, Chairman of the Board, presided and Judy E. Fegley, Interim Coordinator of Board Affairs, recorded the minutes.

The Chairman of the Board requested Ms. Fegley call the roll.

Present: Mr. Daniel J. Brennan
  Ms. Joan Uhl Browne
  Mr. C. William Fall
  Mr. William C. Koester
  Mr. Robert C. Redmond
  Mr. Richard B. Stansley, Jr.
  Ms. Olivia K. Summons
  Mr. Hernan A. Vasquez

A quorum of the Board was constituted. Trustee Richard B. McQuade, Jr., and Student Trustees Donovan T. Nichols and Kristopher L. Keating were absent.

Also present: Daniel M. Johnson, President; Alan G. Goodridge, Provost and Executive Vice President for Academic Affairs and Enrollment; Sandra A. Drabik, Vice President and General Counsel, Board Secretary; Penny Poplin Gosetti, Interim Vice President of Student Life; Michael Dowd, Chair of Faculty Senate; Stephen Goldman, Professor; Jeanne Hartig, Executive Director of Marketing and Communications; Patricia Groves, Associate Professor; David Hopka, Director of Safety and Risk Management; Tobin Klinger, Director of University Communications; Peter Papadimos, Associate General Counsel; James Sciarini, Associate Vice President, Human Resources; Carter Wilson, Professor; media represented included Kim Bates, The Toledo Blade.

1. Call to Order

Chairman Brennan called the meeting to order at 5:10 p.m.

2. Unlawful Harassment Policy

Chairman Brennan stated the reason for this special board meeting is to adopt the University's Unlawful Harassment Policy. The policy has been revised after receiving input from the University community and outside counsel. Mr. Brennan responded to a question he received prior to the meeting from Professor Carter Wilson regarding the deletion of "gender identity" from the policy. The words "gender identity" were removed upon the recommendation of special counsel based on the fact that there is no case law that protects this class.

Upon a motion by Mr. Fall, seconded by Ms. Summons to adopt the Unlawful Harassment Policy, Chairman Brennan opened the matter for discussion.

A member of the audience, Associate Professor Patricia Groves, asked to speak. Mr. Brennan stated there is a board policy regarding advance notice for comments from audience members; however, if there were no objections from other trustees, audience members would be allowed three minutes to speak. Associate Professor Groves urged the trustees to consider returning language about gender identity to the policy. She sat on a subcommittee which provided recommendations to the Administration.

Trustee Vasquez questioned which paths individuals would follow in filing a complaint under this policy. Director of Human Resources Sciarini responded that a separate administrative procedure exists addressing complaints routed through Human Resources or Affirmative Action. Appropriate investigations are conducted by one of these offices.

Vice Provost Goodridge commented that taking gender identity out of the policy changed the entire policy and suggested keeping the language in place would not expose the University to additional liability.

Professor Stephen Goldman commented the policy contains dangerous language and that he was concerned about subtle harassment.

Chairman Brennan thanked everyone for the comments. He reiterated that the policy underwent extensive review by both internal University committees and an outside law firm, Millisor & Nobil. The real issue was that the responsibility for the policy rested with the Board and the Board must take appropriate action.

Chairman Brennan then called for a voice vote of the motion on the floor to adopt the Unlawful Harassment Policy as presented in Exhibit A. The motion passed unanimously.

3. Executive Session

There was no need for an executive session.

4. Adjournment

There being no further business before the Board, upon the motion duly made and carried, the meeting was adjourned at 5:30 p.m.

EXHIBIT A

3360-50-01 Unlawful harassment policy.

(A) General policy statement.

Itis the policy of The University of Toledo to maintain an educational and work environment which is free from all forms of unlawful harassment, including sexual harassment. This commitment applies to all University operations, programs, and activities. All students, administrators, faculty and instructional staff, staff, and all other University personnel share responsibility for avoiding, discouraging, and reporting any form of unlawful harassment. This policy applies to unlawful conduct occurring on University property, or at another location if such conduct occurs during an activity sponsored by the University.

The University will vigorously enforce its prohibition against harassment based on sex, race, color, national origin, religion, disability or handicap, age, veteran status, sexual orientation, or any other unlawful basis, and encourages those within the University community, as well as third parties who feel aggrieved to seek assistance to rectify the problems. The University will investigate all allegations of harassment and in those cases where it determines that unlawful harassment has occurred, the University will take immediate steps to end the harassment. This policy shall be applied and interpreted in accordance with existing legal standards. Complaints of unlawful harassment will be dealt with on a case by case basis taking into consideration the totality of the circumstances. Individuals who are found to have engaged in unlawful harassment will be subject to appropriate disciplinary action.

For purposes of this policy, "University community" means, students, administrators, faculty and instructional staff, staff and all other University personnel, including board of trustee members, agents, volunteers, contractors, or other persons subject to the control and supervision of the University.

For purposes of this policy, "third parties" include, but are not limited to, guests and/or visitors on University property (for example, visiting speakers, participants on opposing athletic teams, parents), vendors doing business with or seeking to do business with the University and other individuals who come in contact with members of the University community at University-related events/activities (whether on or off University property).

(B) Other violations of the unlawful harassment policy.

The University will also take immediate steps to impose disciplinary action in accordance with University policies and applicable collective bargaining agreements on individuals engaged in any of the following prohibited acts:

(1) Retaliating against a person who has made a report or filed a complaint alleging harassment, or who has participated as a witness in a harassment investigation.

(2) Filing a malicious or knowingly false report or complaint of harassment.

(1) Sexual Harassment

(a) Pursuant to Title VII of the Civil Rights Act of 1964 and the Title IX of the Educational Amendments of 1972, "sexual harassment" is defined as:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when:

(i) Submission to such conduct is made either implicitly or explicitly a term or condition of an individual's employment, or
status in a class, educational program, or activity;

(ii) Submission or rejections of such conduct by an individual is used as the basis for employment or educational decision affecting such individual; or

(iii) Such conduct has the purpose or effect of interfering with the individual's work or educational performance; of creating an intimidating, hostile, or offensive working, and/or learning environment; or of interfering with one’s ability to participate in or benefit from a class or an educational program or activity.

Sexual harassment may involve the behavior of a person of either gender against a person of the same or opposite gender.

(b) Prohibited acts that constitute sexual harassment may take a variety of forms. Examples of the kinds of conduct that may constitute sexual harassment include, but are not limited to:

(i) Unwelcome sexual propositions, invitations, solicitations, and flirtations;

(ii) Physical assault;

(iii) Threats or insinuations that a person's employment, wages, academic grade, promotion, classroom work or assignments, academic status, participation in athletics or extracurricular programs or events, or other conditions of employment or education may be adversely affected by not submitting to sexual advances;

(iv) Unwelcome verbal expressions of a sexual nature, including graphic sexual commentaries about a person's body, dress, appearance, or sexual activities; the unwelcome use of sexually degrading language, jokes or innuendoes; unwelcome suggestive or insulting sounds or whistles; obscene telephone calls;

(v) Sexually suggestive objects, pictures, videotapes, audio recordings or literature, placed in the work or educational environment, which may embarrass or offend individuals;

(vi) A pattern of conduct, which can be subtle in nature, that has sexual overtones and is intended to create or has the effect of creating discomfort and/or humiliation to another; and

(vii) Remarks speculating about a person's sexual activities or sexual history, or remarks about one's own sexual activities or sexual history.

Not all behavior with sexual connotations constitutes unlawful sexual harassment. Conduct must be sufficiently severe or pervasive to adversely affect an individual's employment or education, or to create a hostile or abusive employment or educational environment.

(2) Other discriminatory harassment.

Other prohibited discriminatory harassment includes intimidation, ridicule or insults that unreasonably interferes with an individual's work or educational performance; creates an intimidating, hostile or offensive working and/or learning environment; or otherwise adversely affects an individual's work or learning opportunities.

This type of discriminatory harassment applies to such conduct, which is based on an individual's race, color, national origin, religion, disability, age, disability or handicap, national origin, gender, sexual orientation, veteran status, or any other legally-protected characteristic. It includes actions such as repeated verbal abuse; the circulation of written material that demeans or exhibits hostility or dislike toward an individual or any of the aforementioned groups of persons; or inappropriate jokes or slurs.

(D) Administrative process.

The president shall establish administrative processes for the investigation, processing, and resolution of complaints of unlawful harassment.

Replaces:
Effective date:
Certification:  Sandra A. Drabik
Secretary, Board of Trustees
Date:
Promulgated under: RC section 111.15
Statutory authority: RC section 3360
Rule amplifies:  RC section 3360
Prior effective dates: