II-C. Instructional Staff, Including Faculty

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1. Grievance Procedure for All Members of the Instructional Staff

An instructional staff grievance is an allegation of inappropriate discrimination or substantial unfairness, relating to one’s work as a member of the College’s instructional staff. Such a grievance may include but is not limited to discrimination on grounds of sex, race, color, age, religion, national origin, marital status, sexual orientation, gender identity or expression, veteran status, medical condition, pregnancy, disability, or any other legally protected status.

This grievance procedure applies to all full-time and part-time faculty and other instructional staff members of Swarthmore College whether or not appointed to regular faculty rank. An instructional staff member who wishes to have a grievance considered by the College is required to follow this procedure, except for a complaint involving a reappointment decision or a termination, in which case, the procedure in the Handbook for Instructional Staff sections entitled “Review of Appointment Renewal Decisions” and “Termination of Appointments” shall be employed.

An instructional staff member who asserts a grievance is expected to make timely and good faith efforts first to resolve that grievance through consultation without resort to the instructional staff grievance procedure. Among the steps deemed appropriate are: discussing the grievance with the person or persons who appear to be responsible for it; discussing the grievance with the Department Chair; discussing the grievance with the Provost.

The instructional staff member may consult the College Equal Opportunity Officer at any time, informally and confidentially, about grievance procedure and/or means available for mediation, conciliation, or formal investigation of a grievance, whether or not the grievance is technically concerned with equal opportunity.

Instructional staff members should note that there are time limitations for filing grievances with state and federal equal opportunity agencies. The state office requires that a grievance be filed within 180 days of the occurrence of the incident; the federal office requires that a grievance be filed within 300 days of the occurrence of the incident. These deadlines are independent of the grievance procedure at the College, and there is no requirement that internal procedures be completed before a grievance is filed with the appropriate government agency.

The Procedure

1. An instructional staff member who concludes that he or she has a grievance, whether or not the grievance is an equal opportunity grievance, and who has failed despite timely and good-faith efforts to resolve that grievance consultatively, may invoke the instructional staff grievance procedure. If the instructional staff member believes that the grievance may involve equal opportunity issues, (s)he should consult the Equal Opportunity Officer. If the instructional staff member believes that the grievance does notinvolve equal opportunity issues, (s)he may consult either the Equal Opportunity Officer or the Provost. In the case of a non-equal opportunity grievance against the Provost, a Division Chair may be consulted. The request to initiate the grievance procedure must be written and should include the following

a. A statement of the particulars of the grievance, including a specification of the grievance itself and allegations with respect to the act or acts constituting the grievance and the person or persons responsible for those acts.
b. A statement detailing steps taken by the instructional staff member to resolve the grievance through consultation.

The instructional staff member may consult with the Equal Opportunity Officer, Provost, or Division Chair or with anyone else for advice in preparing these statements.

The Equal Opportunity Officer should consult with the Provost or Division Chair if (s)he receives a request that does not involve an equal opportunity issue; the Provost or Division Chair should consult with the Equal Opportunity Officer if (s)he receives a request that does involve an equal opportunity issue.

2. Policy Issue

a. Equal Opportunity Issue. Upon receiving written notification of an equal opportunity grievance, the Equal Opportunity Officer shall consult with the faculty representatives of the Equal Opportunity Advisory Committee to determine whether the grievance raises issues of policy. If the Equal Opportunity Officer and the faculty representatives of the Equal Opportunity Advisory Committee conclude that the grievance involves a policy issue, such that it might well be resolved by a change in College policy or procedure, the Equal Opportunity Officer shall then consult appropriate administrators concerning the current College policy. The Equal Opportunity Officer shall then notify the President in writing of the policy issue raised by the grievance and may recommend to the President changes in policy.

b. Non-Equal Opportunity Issue. Upon receiving written notification of a non-equal opportunity grievance, the Provost or Division Chair shall consult with the faculty representatives of the COFP to determine whether the grievance raises issues of policy. If the Provost or Division Chair and the faculty representatives of the COFP conclude that the grievance involves a policy issue, such that it might be resolved by a change in College policy or procedure, the Provost or Division Chair shall then consult appropriate administrators concerning the current College policy. The Provost or Division Chair shall then notify the President in writing of the policy issue raised by the grievance and may recommend to the President changes in policy.

For either equal opportunity or non-equal opportunity policy considerations, the President shall consult with the COFP and initiate procedures in a timely fashion to provide for a review of the policy by the appropriate agencies of the College. The President may consult with the instructional staff member and with other affected parties about changes of policy or a remedy for the aggrieved party. The instructional staff member shall be notified in writing of the President’s decision or decisions.

3. Individual Grievance: Informal Disposition.

If it is concluded that the individual grievance does not raise a policy issue or cannot be adequately resolved as such, the Equal Opportunity Officer, Provost, or Division Chair may, with the agreement of the instructional staff member, take steps directed toward its informal disposition. Such steps may include discussion of the grievance with the instructional staff member’s Department Chair and with the Provost. The Equal Opportunity Officer, Provost, or Division Chair may consult with others and may arrange a meeting involving the instructional staff member and others in an attempt to resolve the grievance.

The instructional staff member may seek or the Equal Opportunity Officer, Provost, or Division Chair may recommend mediation or conciliation of the grievance. The instructional staff member may request mediation or conciliation either by the Equal Opportunity Officer, Provost, or Division Chair, or by another member of the Swarthmore College instructional staff. In the latter case, the parties to the dispute may agree among themselves upon such a person. If they do not agree, the Equal Opportunity Officer, Provost, or Division Chair may suggest a method of selection or, failing acceptance of that, may ask the COFP to recommend a method of selection. In exceptional cases, the instructional staff member may request of COFP that an outside instructional staff member, acceptable to both parties, be appointed to act as mediator or conciliator.

In mediation or conciliation the primary aim is to resolve the grievance so as to restore or enhance conditions of professional collegiality and of productive professional work. This will normally entail taking steps toward achieving a common understanding by all parties to the grievance or the problems that gave rise to it.

The instructional staff member may, at any point in the informal disposition process, request that the formal disposition process be started.

4. Individual Grievance: Formal Disposition.

A formal disposition of an individual grievance entails a determination of the basic facts of the issue by a faculty committee, as provided for below, and a finding that the facts do or do not substantiate the grievance. The ultimate finding may be accompanied by a recommendation to the President for redress of the grievance. Final action is the responsibility of the President, even if the President is named as a party to the grievance.

Upon receipt of the request and supporting statements, the Equal Opportunity Officer, Provost, or Division Chair shall notify the COFP of that request and include a copy of the instructional staff member’s request. COFP shall as soon as possible but in any case within 30 days of receipt of the request appoint a committee of three to five faculty members of whom at least a majority shall be tenured. COFP shall appoint one of the tenured members to chair the Committee.

The committee will proceed in private as it deems best, resolving by majority vote any issues relating to procedure or its ultimate findings, with provision for minority reports. Counsel may be made available for consultation by the Committee upon approval by the President. The Committee may consult with or interview whomever it chooses in reaching its determinations.

If the Committee determines either that the instructional staff member has failed to make good-faith efforts to resolve the grievance through consultation prior to invoking the grievance procedure or that the instructional staff member has failed to establish a prima facie case of a grievance, it shall so notify the instructional staff member. The instructional staff member shall have an opportunity to respond within reasonable time; but if the Committee remains convinced either that good-faith efforts were lacking or that a prima facie case was not established, it shall so notify the instructional staff member in writing and terminate the grievance procedure. The Committee will also report its determination, with or without recommendations, to the President and to the Equal Opportunity Officer, Provost, or Division Chair.

If the instructional staff member is not satisfied with this disposition of an equal opportunity grievance and wishes to pursue the matter further, he or she may request information from the Equal Opportunity Officer about other remedies available from state or federal agencies.

If the Committee determines that the instructional staff member has made good faith efforts toward an informal resolution of the grievance and that a prima facie case for the grievance has been established, it shall proceed to a formal determination, to which the following provisions apply.

a. The Committee will proceed by considering the instructional staff member’s allegations with respect to the grievance and determine whether the evidence, considered altogether, substantially establishes the grievance. Once submitted to the Committee, neither the grievance nor the allegations supporting it may be amended except following further attempts at conciliation or mediation or except when the Committee concludes that justice would not be served by denying the amendment(s).
b. The Committee need not adhere to strict rules of evidence and may consider any evidence of probative value with respect to the issues involved.
c. The burden of proof shall rest with the instructional staff member asserting the grievance; but the Committee shall not be foreclosed from seeking additional evidence, relating to the grievance, on its own initiative.
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d. The Committee shall have the power to conduct the proceedings in an orderly manner. The Committee may secure the presentation of evidence and attendance of witnesses concerning facts in dispute and may expect to have the assistance of the College administration in obtaining the attendance of witnesses. The Committee may, at any time it deems appropriate, exclude any or all other persons and deliberate in private.
e. The instructional staff member and the person or persons complained against shall each be permitted to choose an instructional staff colleague to serve in the capacity of advisor and to accompany them in their appearances before the Committee. A representative of the College administration may also be present, at the Committee’s discretion, during the taking of testimony.
f. The instructional staff member and the person or persons complained against shall, at some stage or stages of the proceedings, appear together before the Committee, testify, and respond to one another.
g. The deliberations of the Committee and testimony given before the Committee shall be confidential but for the specific exceptions provided below. Obligations to respect the confidentiality of the testimony, the proceedings, and the recommendations and reports of the Committee extend to all members of the College community and to all persons involved in the proceedings. Violations of confidentiality by any party may be considered with prejudice by the Committee.
h. At any point in its proceedings the Committee, on its own initiative or in response to the parties, may recommend further efforts at conciliation or mediation and may suspend its proceedings during this period.

The Committee shall formulate an initial determination as to whether the evidence, considered altogether, substantially establishes the grievance. Its determination shall include a statement, with appropriate specificity, of the facts and the conclusions from these facts that support their decision. This statement shall be given to the instructional staff member, to the person or persons complained against, to the Equal Opportunity Officer, Provost, or Division Chair, and to the President. Within a reasonable time, but not more than 30 days, either the instructional staff member or the person or persons complained against may:

a. initiate further attempts at conciliation or mediation;
b. make a request for amendments in the determination of the facts or conclusions from those facts. This request should be in writing and may be supported by oral argument.

In discussing the interim report with the instructional staff member or with the person or persons complained against, the Committee will strive at all times to preserve confidentiality, especially with respect to those not parties to the dispute, except that confidential information may be divulged by the Committee with the consent of the affected parties, or after notification of the affected parties and insofar as necessary to procedural fairness.

After the Committee has received and considered the instructional staff member's comments and those of the person or persons complained against, it shall proceed to a final determination. Its final determination shall include an explicit and reasoned statement of the Committee's conclusion with respect to the merits of the grievance.

Copies of the Committee’s statement shall be given to the instructional staff member, to the person or persons complained against, to the President, and to the Equal Opportunity Officer.

Whether or not the Committee finds merit in the complaint, it may make recommendations for disposition of the complaint or for dealing with the circumstances that gave rise to it, in writing, to the President.

The President shall decide what further steps to take, either to redress the grievance or to act upon advice given by the Committee, informing the Committee and the parties of the decision and giving the reasons for it.
(Approved by the Faculty, 15 December 1995)