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CWUR 3-45-062 Supplemental Title IX Disciplinary Hearing

The Executive Director of Human Resources or other designee through the vice president of operations is responsible for this policy and relevant policy CWUP 2-35-015.

Order of Precedence. This supplemental employee disciplinary procedure applies to allegations of sexual harassment subject to Title IX jurisdiction pursuant to regulations promulgated by the United States Department of Education. See 34 C.F.R. § 106. Disciplinary proceedings against an employee respondent alleged to have engaged in sexual harassment in violation of Title IX shall be governed by the university’s administrative hearing practices and procedures, Chapter WAC 106-108, and this supplemental hearing procedure. To the extent the supplemental hearing procedure conflicts with WAC 106-108, and/or provisions set forth in employment contracts, collective bargaining agreements, employee handbooks, and other university employment policies and procedures, this supplemental hearing procedure will take precedence.

(1) Prohibited Conduct Under Title IX

Pursuant to Title IX of the Education Act Amendments of 1972, 20 U.S.C. §1681, the university may impose disciplinary sanctions against an employee who commits, attempts to commit, or aids, abets, incites, encourages, or assists another person to commit, an act(s) of “sexual harassment.”

For purposes of this supplemental procedure, “sexual harassment” encompasses the following conduct:

(A) Quid pro quo harassment. An employee of the university conditioning the provision of an aid, benefit, or service of the University on an individual’s participation in unwelcome sexual conduct.

(B) Hostile environment. Unwelcome conduct that a reasonable person would find to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the University’s educational programs or activities, or employment.

(C) Sexual assault. Sexual assault includes the following conduct:

1. Nonconsensual sexual intercourse. Any actual or attempted sexual intercourse (anal, oral, or vaginal), however slight, with any object or body part, by a person upon another person, that is without consent and/or by force. Sexual intercourse includes anal or vaginal penetration by a penis, tongue, finger, or object, or oral copulation by mouth to genital contact or genital to mouth contact.

2. Nonconsensual sexual contact. Any actual or attempted sexual touching, however slight, with any body part or object, by a person upon another person that is without consent and/or by force. Sexual touching includes any bodily contact with the breasts, groin, mouth, or other bodily orifice of another individual, or any other bodily contact in a sexual manner.

3. Incest. Sexual intercourse or sexual contact with a person known to be related to them, either legitimately or illegitimately, as an ancestor, descendant, brother, or sister of either wholly or half related. Descendant includes stepchildren and adopted children under the age of eighteen (18).

4. Statutory rape. Consensual sexual intercourse between someone who is eighteen (18) years of age or older and someone who is under the age of sixteen (16).

(D) Domestic violence. Physical violence, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, or stalking committed by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the State of Washington, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the State of Washington, RCW 26.50.010.

(E) Dating violence. Physical violence, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, or stalking committed by a person (i) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (ii) where the existence of such a relationship shall be determined based on a consideration of the following factors:

1. The length of the relationship;

2. The type of relationship; and

3. The frequency of interaction between the persons involved in the relationship.

(F) Stalking. Engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for their safety or the safety of others, or suffer substantial emotional distress.

(2) Title IX Jurisdiction

(A) This supplemental procedure applies only if the alleged misconduct:

1. Occurred in the United States;

2. Occurred during a university educational program or activity;

3. Meets the definition of sexual harassment as that term is defined in this supplemental procedure; and

4. At the time of filing a formal complaint, the complainant was participating or attempting to participate in the educational program or activity.

(B) For purposes of this supplemental procedure, an “educational program or activity” is defined as locations, events, or circumstances over which the University exercised substantial control over both the respondent and the context in which the alleged sexual harassment occurred. This definition includes any building owned or controlled by a student organization that is officially recognized by the university.

(C) Proceedings under this supplemental procedure must be dismissed if the decision maker determines that one or all of the requirements of Section A (1)-(4) have not been met. Dismissal under this supplemental procedure does not prohibit the university from pursuing disciplinary action against a respondent based on allegations that the respondent engaged in other misconduct prohibited by federal or state law, employment contracts or handbooks, or other university policies.

(D) If the Employee Conduct Officer designated by the University determines the facts in the investigation report are not sufficient to support Title IX jurisdiction and/or pursuit of a Title IX violation, the Conduct Officer will issue a notice of dismissal in whole or part to both parties explaining why some or all of the Title IX claims have been dismissed.

(3) Initiation of Discipline

(A) Upon receiving the Title IX investigation report from the Title IX Coordinator, the Employee Conduct Officer will independently review the report to determine whether there are sufficient grounds to pursue a disciplinary action against the respondent for engaging in prohibited conduct under Title IX.

(B) If the Employee Conduct Officer determines that there are sufficient grounds to proceed under these supplemental procedures, the Conduct Officer will initiate a Title IX disciplinary proceeding by filing a written disciplinary notice with the Employee Conduct Committee and by serving the notice on the respondent and the complainant, and their respective advisors. The notice must:

1. Set forth the basis for Title IX jurisdiction;

2. Identify the alleged Title IX violation(s);

3. Set forth the facts underlying the allegation(s);

4. Identify the range of possible sanctions that may be imposed if the respondent is found responsible for the alleged violation(s);

5. Explain that each party is entitled to be accompanied by an advisor of their own choosing during the hearing and that:

6. Advisors will be responsible for questioning all witnesses on the party’s behalf;

7. An advisor may be an attorney and/or, if the party is a represented employee, a union representative;

8. A represented employee who chooses an advisor who is not a union representative must submit a signed waiver of union representation that includes consent from the union; and

9. The university will appoint the party an advisor of the university’s choosing at no cost to the party, if the party fails to choose an advisor; and

10. Explain that if a party fails to appear at the hearing, a decision of responsibility may be made in the party’s absence.

(C) Service of the disciplinary notice or any other document required to be served under this supplemental procedure may be done personally or by first class, registered, or certified mail, or by electronic mail to the party’s university email address.

(4) Employee Conduct Committee

For purposes of this supplemental Title IX procedure, the Employee Conduct Committee shall consist of three university employees appointed by the University President (or designee).

(5) Pre-Hearing Procedure

(A) Upon receiving the disciplinary notice, the Chair of the Employee Conduct Committee will send a hearing notice to all parties in compliance with WAC 10-08-040. In no event will the hearing date be set less than ten (10) days after the Title IX Coordinator provided the final investigation report to the parties.

(B) A party is entitled to be accompanied by an advisor of their choice during the disciplinary process at the party’s own expense. The advisor may be an attorney and/or, if the party is a represented employee, a union representative.

If the advisor is an attorney, the advisor must file a notice of appearance with the Chair of the Employee Conduct Committee with copies to all parties and the Employee Conduct Officer at least five (5) days before the hearing. If a notice of appearance is not filed within this timeframe, the party will be deemed to have waived the right to have an attorney as an advisor.

If a party is a represented employee who chooses not to use a union-provided advisor, the party must provide the Chair of the Employee Conduct Committee with a signed waiver of union representation, including written consent from the union.

(C) In preparation for the hearing, the parties will have equal access to all evidence gathered by the investigator during the investigation, regardless of whether the University intends to offer the evidence at the hearing.

(6) Rights of Parties

(A) The provisions of this supplemental procedure shall apply equally to both parties. 

(B) The university bears the burden of offering and presenting sufficient testimony and evidence to establish that the respondent is responsible for a Title IX violation by a preponderance of the evidence.

(C) The respondent will be presumed not responsible until such time as the disciplinary process has been finally resolved.

(D) During the hearing, each party shall be represented by an advisor. The parties are entitled to an advisor of their own choosing and the advisor may be an attorney or, if the respondent holds a represented position, a union representative. If a party does not choose an advisor, then the Title IX Coordinator will appoint an advisor of the university’s choosing on the party’s behalf at no expense to the party.

(7) Evidence. The introduction and consideration of evidence during the hearing is subject to the following procedures and restrictions:

(A) Relevance: The Conduct Committee Chair shall review all questions for relevance and shall explain on the record their reasons for excluding any question based on lack of relevance.

(B) Relevance means that information elicited by the question makes a fact is dispute more or less likely to be true.

(C) Questions or evidence about a complainant’s sexual predisposition or prior sexual behavior are not relevant and must be excluded, unless such question or evidence:

1. Is asked or offered to prove someone other than the respondent committed the alleged misconduct; or

2. Concerns specific incidents of prior sexual behavior between the complainant and the respondent, which are asked or offered on the issue of consent.

(D) Cross-examination required: If a party or witness does not submit to cross-examination during the live hearing, the Conduct Committee must not rely on any statement by that party or witness in reaching a determination of responsibility.

(E) No negative inference: The Conduct Committee may not make an inference regarding responsibility solely on a witness’s or party’s absence from the hearing or refusal to answer questions.

(F) Privileged evidence: The Conduct Committee shall not consider legally privileged information unless the holder has effectively waived the privilege. Privileged information includes, but is not limited to, information protected by the following:

1. Spousal/domestic partner privilege;

2. Attorney-Client and attorney work product privileges;

3. Privileges applicable to members of the clergy and priests;

4. Privileges applicable to medical providers, mental health therapists, and counsellors;

5. Privileges applicable to sexual assault and domestic violence advocates; and

6. Other legal privileges identified in RCW 5.60.060.

(8) Initial Order

(A) The Employee Conduct Committee will be responsible for drafting an Initial Order that:

1. Identifies the allegations of sexual harassment;

2. Describes the grievance and disciplinary procedures, starting with filing of the formal complaint through the determination of responsibility, including notices to parties, interviews with witnesses and parties, site visits, methods used to gather evidence, and hearings held;

3. Makes findings of fact supporting the determination of responsibility;

4. Reaches conclusions as to whether the facts establish whether the respondent is responsible for engaging in sexual harassment in violation of Title IX;

5. Contains a statement of, and rationale for, the Committee’s determination of responsibility for each allegation;

6. Describes any disciplinary sanction or conditions imposed against the respondent, if any;

7. Describes to what extent, if any, the complainant is entitled to remedies designed to restore or preserve complainant’s equal access to the University’s educational programs or activities; and

8. Describes the process for appealing the Initial Order to the University President.

(B) The Conduct Committee Chair will serve the Initial Order on the parties simultaneously.

(9) Appeals

(A) The parties have the right to appeal from the determination of responsibility and/or from a Title IX dismissal, in whole or part, of a formal complaint, as set forth in the Initial Order. A party may appeal by filing a written notice of appeal with the President’s Office within twenty days of service of the Initial Order. A party's notice of appeal must explain why the party disagrees with the disciplinary decision and what relief or remedy the party is requesting. Copies of the appeal must be provided to the Employee Conduct Officer and to all parties and their advisors of record.

(B) The President or President’s designee will determine whether the grounds for appeal have merit, provide the rationale for this conclusion, and state whether the disciplinary sanctions and conditions imposed in the Initial Order are affirmed, vacated, or amended, and, if amended, set forth the new disciplinary sanctions and conditions.

(C) The President’s Office shall serve the Final Decision on the parties simultaneously.

(D) All decisions reached through this process are final. No decisions or recommendations arising from this disciplinary procedure will be subject to grievance pursuant to any collective bargaining agreement.

 [Responsibility: Business & Financial Affairs Division; Authority: Cabinet/UPAC; Reviewed/Endorsed by: Cabinet/UPAC; Review/Effective Date: 09/29/2020; Approved by: James L. Gaudino, President] 

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