1445P Title IX Sexual Harassment Grievance Procedure

Original Date: 9/28/2021 * Last Revision Effective: 9/28/2021 (temporary approval granted by President’s Cabinet – expires 03/28/22)

Policy Contact: Vice President, Diversity, Equity and Inclusion

Procedures

Purpose

Bellevue College recognizes its responsibility to investigate, resolve, and implement corrective measures, and to monitor the educational environment and workplace to stop, remediate, and prevent discrimination on the basis of sex, as required by Title IX of the Educational Amendments of 1972 and its implementing regulations. This Sexual Harassment Grievance Procedure sets forth the college’s process for initiating, informally resolving, and/or formally investigating reports that an employee has violated Title IX prohibitions against sexual harassment that occur during the College’s education programs and activities.

 

Application

This procedure applies to all students, employees, applicants for employment or admission, volunteers, and members of the college community. They are restricted to reports of sexual harassment, as that term is defined in 34 C.F.R. §106.30, that occurs in any college service, activity, or program, including in employment and academic programs and in the context of other college services and activities. Reported behavior must have occurred in the United States and where the college exercises substantial control over both the context in which the behavior was reported to have occurred and the respondent.

Nothing in these procedures limits or otherwise restricts the college’s ability to investigate and pursue discipline based on reported violations of other federal, state, and local laws, their implementing regulations, and other college policies prohibiting gender discrimination through processes set forth in the college’s discrimination and retaliation procedures (1445P), the code of student conduct, employment contracts, employee handbooks, and collective bargaining agreements (CBAs).

 

Definitions

  • Advisor means a person chosen by a party to accompany the party to meetings related to the resolution process, to advise the party on that process, and to conduct cross-examination for the party at the hearing, if any. An advisor may be an attorney. If a party does not have an advisor during the hearing, the college will appoint an advisor on their behalf.
  • Appeal Officer is the college president, or a designee identified to review and decide on appeals for determination of responsibility and dismissal of a formal complaint or any allegations therein. The appeal officer cannot be the same person as the decisionmaker(s) that reached the determination regarding responsibility or dismissal, the investigator(s), or the Title IX coordinator.
  • Business Day means a weekday, excluding weekends, college holidays, and college closures.
  • Complainant means an individual who is reported to be the target of conduct that could violate this policy and associated procedures and who has initiated a complaint. To access the procedures in this policy, a complainant must be participating or attempting to participate in a college education program or activity.
  • Consent is knowing, voluntary, and clear permission by word or action to engage in mutually agreed upon sexual activity.
    • Effective consent cannot result from force, or threat of physical force, coercion, dishonesty, or intimidation.
    • Physical force means someone is physically exerting control of another person through violence. Physical force includes, but is not limited to, hitting, kicking, and restraining.
    • Threatening someone to obtain consent for a sexual act is a violation of this policy. Threats exist where a reasonable person would have been compelled by the words or actions of another to give permission to sexual activity to which they otherwise would not have consented.
    • Each party has the responsibility to make certain that the other has consented before engaging in the activity. For consent to be valid, there must be at the time of the act of sexual intercourse or sexual contact actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact.
    • A person cannot consent if they are unable to understand what is happening or are disoriented, helpless, asleep, or unconscious for any reason, including due to alcohol or other drugs. An individual who engages in sexual activity when the individual knows, or should know, that the other person is physically or mentally incapacitated has engaged in nonconsensual conduct. Intoxication is not a defense against allegations that an individual has engaged in nonconsensual sexual conduct.
  • Counter Complaint is when a respondent makes a complaint against a complainant who has already made a complaint against that respondent.
  • Days refers to calendar days, excluding holidays, unless otherwise stated.
  • Directly Related Evidence is evidence that may be related to the parties but is neither inculpatory (tending to prove a violation) or exculpatory (tending to disprove a violation) and will not be relied upon in the investigation report.
  • Disciplinary Processes are hearing processes that the college uses to determine whether a respondent is responsible for engaging in Title IX sexual harassment.
  • Education Program or Activity includes locations, events, or circumstances over which the college exercises substantial control over both the respondent and the context in which the reported behavior occurred. It also includes any building owned or controlled by a student organization officially recognized by the college. Employees who work in college education programs or activities are part of those programs and activities.
  • Emergency Measures are restriction on a respondent that occur before a final determination, and imposed after considering the individual situation and determining that the respondent poses an immediate threat to the physical health or safety of students or employees and that the threat justifies the emergency measure.
  • Final Determination is a conclusion by the standard of proof that the reported conduct did or did not violate policy.
  • Finding is a conclusion by the standard of proof that the conduct did or did not occur as reported (as in a “finding of fact”).
  • Formal Complaint means a document filed and signed by a complainant or signed by the Title IX coordinator reporting conduct that could violate this policy and requesting that the college investigate.
  • Formal Complaint Process means the process used for filing, investigating, and adjudicating a complaint of sexual harassment as described in these procedures following the submission and receipt of a formal complaint.
  • Grievance Procedure is the process the college uses to initiate, formally or informally resolve, and/or investigate reports that an employee or student has violated Title IX provisions prohibiting sexual harassment.
  • Hearing Decision-Maker or Panel refers to those who have decision-making and sanctioning authority within the college’s grievance process.
  • Hearing Facilitator refers to the person who facilitates a hearing in the formal complaint process and who determines whether evidence is relevant and whether a party or witness must answer questions asked on cross examination. The hearing facilitator may be, but need not be, the same person as the hearing decision maker.
  • Informal Resolution Process is a resolution process that does not involve a full investigation or adjudication of a complaint as described in the formal complaint process and requires voluntary participation of the parties.
  • Investigator means the person or persons charged by the college to gather facts and evidence about a reported violation of this policy, and create a factual report regarding the reported violation.
  • Notice to the College means that a person informs the Title IX Officer, Title IX coordinator, or another official with authority (OWA) of the occurrence of behavior that may violate this policy.
  • Official with Authority (OWA) means an employee of the college explicitly vested with the responsibility to implement corrective measures for harassment, discrimination, and/or retaliation on behalf of the college. The Title IX officer, Title IX coordinator, student conduct manager, and vice president of human resources are officials with authority. Other employees who may be designated by the Title IX officer as an OWA will be identified on the Title IX website.
  • Parties include complainant(s) and respondent(s), collectively.
  • Preponderance of the Evidence means that something is “more likely than not.” This is the standard used to determine whether this policy has been violated.
  • Relevant Evidence is evidence that tends to prove or disprove an issue in the complaint.
  • Relevant Witness is a witness that tends to prove or disprove an issue in the complaint.
  • Remedies are post-finding actions taken to address safety, prevent recurrence, and restore access to the college’s educational programs or activities.
  • Respondent means an individual who has been reported to have engaged in conduct that could violate this policy.
  • Responsible Employee means an employee of the college who, by policy, is required to report information about harassment, discrimination, and/or retaliation. Responsible employees must act by making required reports to Title IX, or by filing a CARE or conduct report. Pursuant to policy 1440, all employees are responsible for reporting suspected harassment, discrimination, or retaliatory behavior.
  • Resolution means the result of an informal or formal grievance process.
  • Sanction means a consequence imposed by the college on a respondent who is found to have violated this policy.
  • Service is the process by which a document is officially delivered to a party. Unless otherwise provided, service upon a party shall be accomplished by either:
    • Hand delivering the document to the party; or
    • Sending the document by email and by certified or first-class mail to the party’s last known address.
    • Service on a party is deemed complete on the date the document is hand-delivered to the party or, the date the document is emailed and/or deposited in the mail.
  • Sexual Harassment, for purposes of these Title IX Grievance Procedures, occurs when a respondent engages in the following discriminatory conduct on the basis of sex:
    • Quid Pro Quo Harassment. A college employee conditioning the provision of an aid, benefit, or service of the college on an individual’s participation in unwelcome sexual conduct.
    • 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 college’s educational programs or activities or college employment.
    • Sexual Assault. Sexual assault includes the following conduct:
      • Rape – (Includes attempted rape, excludes statutory rape) The carnal knowledge of a person, without the consent of the victim, including instances where the victim is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity.
      • Sodomy – Oral or anal sexual intercourse with another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity.
      • Sexual Assault with an Object – To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity.
      • Fondling – The touching of the private body parts of another person for the purpose of sexual gratification without the consent of the victim, including instances where the victim is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity.
      • Incest – Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
      • Statutory Rape – Nonforcible sexual intercourse with a person who is under the statutory age of consent.
    • Domestic Violence. Felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the complainant, by a person with whom the complainant shares a child in common, by a person who is cohabitating with or has cohabitated with the complainant as a spouse or intimate partner, by a person similarly situated to a spouse of the complainant under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth complainant who is protected from that person’s acts 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.
    • Dating Violence. Violence committed by a person:
      • who is or has been in a social relationship of a romantic or intimate nature with the complainant;
      • where the existence of such a relationship shall be determined based on a consideration of the following factors:
        • The length of the relationship.
        • The type of relationship.
        • The frequency of interaction between the persons involved in the relationship.
    • 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.
  • Supportive Measures are non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or respondent regardless of whether the complainant or the Title IX coordinator has filed a formal complaint. Supportive measures restore or preserve a party’s access to the college’s education programs and activities without unreasonably burdening the other party, as determined through an interactive process between the Title IX coordinator and the party. Supportive measures include measures designed to protect the safety of all parties and/or the college’s educational environment and/or to deter sexual harassment or retaliation. Supportive measures may include, but are not limited to:
    • referral to counseling, employee assistance program, external advocacy agencies, and other support services;
    • academic support, extensions of deadlines, or other course/program related adjustments;
    • class schedule modifications, withdrawals, or leaves of absence;
    • work location or schedule adjustments;
    • campus safety escorts, increased security or monitoring of certain areas of campus;
    • implementing contact limitations (no contact directives) between the parties while on campus or during a college educational event or activity;
    • altering campus housing assignments.
  • Title IX Team are the Title IX officer, Title IX coordinator, Title IX investigators, the student conduct manager, student conduct committee members, the employee discipline officer, the employee discipline hearing officer, and other persons responsible for administering the Title IX Sexual Harassment Grievance Procedure and Title IX disciplinary hearings for students and employees.
    • Members of the Title IX team may serve as a designee by the Title IX officer or Title IX coordinator for specific tasks.
    • The Title IX Officer is the primary official designated by the college to ensure compliance with Title IX and the college’s Title IX program. The Title IX officer oversees all processes and resolutions under this and related policies and procedures. In cases in which a complainant or respondent is an employee, the vice president of human resources or their designee shall be assigned as a co-coordinator to ensure the Grievance Process complies with labor laws, contracts, and other college employment policies and procedures. For the purposes of this procedure, the Title IX officer takes on the Title IX coordinator role when the Title IX coordinator serves as the investigator.
    • The Title IX Coordinator has the primary responsibility for coordinating the college’s efforts related to the intake, investigation, resolution, and implementation of supportive measures to stop, remediate, and prevent discrimination, harassment, and retaliation prohibited under this policy. For purposes of Title IX, any of the persons holding the following positions may serve as Title IX co-coordinators as designated by the Title IX officer: Title IX officer, Title IX coordinator, and the vice president of human resources. The vice president of human resources (or designee) will be a Title IX co-coordinator on any complaints involving an employee respondent. References to the Title IX coordinator throughout this procedure may also encompass a Title IX co-coordinator.

 

Scope

The following requirements must be met for these procedures to apply. If it does not meet the requirements, the matter may be referred for review under other college policies and applicable laws, regulations, contracts, and CBAs.

  • The reported behavior must meet the definition of sexual harassment in this procedure.
  • The matter reported must occur in a college education program or activity.
  • The reported behavior must have taken place in the United States.
  • At the time of filing a report, the complainant must be participating in or attempting to participate in a college education program or activity.
  • The respondent must be a member of the college community.

Evaluations for scope may occur at any time during the investigation process by the investigator and/or Title IX coordinator. If the investigator concludes that the matter does not fall within the scope of this procedure, the investigator shall consult with the Title IX coordinator. If the Title IX coordinator concludes that the matter does not fall within the scope of this procedure, the Title IX coordinator will dismiss the formal complaint and determine if it should be forwarded for review under another college policy.

 

Principles for Title IX Grievance Procedure

Respondent shall be presumed not responsible for the reported conduct unless or until a determination of responsibility is reached after completion of the grievance and disciplinary processes.

Before imposing discipline, the college is responsible for gathering and presenting evidence to a neutral and unbiased decision maker establishing responsibility for a Title IX violation by a preponderance of the evidence.

The college shall treat both the complainant and respondent equitably by providing complainant with remedies against respondent who has been found responsible for sexual harassment through application of the institution’s Title IX grievance and applicable Title IX disciplinary procedures and by providing respondent with Title IX procedural safeguards contained in these Title IX Grievance Procedures and in the applicable Title IX disciplinary procedures.

The investigator shall base investigation results on all relevant evidence, including both exculpatory and inculpatory evidence.

Formal and informal resolutions will be pursued within reasonably prompt timeframes with allowances for temporary delays and extensions for good cause shown. Grounds for temporary delay include, but are not limited to academic holidays, college closures, academic breaks, and other unforeseen circumstances. Good cause supporting a request for an extension includes, but is not limited to a party, a party’s advisor, or a witness being unavailable, concurrent law enforcement activity, and the need for language assistance or accommodation of disabilities. Both parties will be served written notice of any temporary delay or extension for good cause with an explanation of why the action was necessary.

A student respondent found responsible for engaging in sexual harassment may receive discipline up to and including dismissal from the college. A description of other possible disciplinary sanctions and conditions that may be imposed against students can be found in WAC 132H-126-110. An employee found responsible for sexual harassment may receive discipline up to and including termination of employment. A description of possible disciplinary sanctions and conditions that may be imposed against employees can be found in collective bargaining agreements and college policies and procedures.

In proceedings against a student respondent, the parties may appeal the student conduct committee’s ruling to the college president pursuant to WAC 132H-126-340 and Supplement Title IX Student Conduct Code Procedures, WAC 132H-126-480. In proceedings against an employee respondent, the parties may appeal the employee disciplinary decision pursuant to Section XI of 1445P2 Title IX Employee Disciplinary Hearing (Procedures).

 

Title IX Team – Free from Bias – Training Requirements

Members of the Title IX team shall perform their duties free from bias or conflicts and undergo training based on the requirements for their specific role and may include some or all of the following:

  • The definition of sexual harassment under these procedures,
  • The scope of the college’s educational programs and activities,
  • How to conduct an investigation,
  • How to serve impartially without prejudgment of facts, conflicts of interest, or bias,
  • Use of technology used during an investigation or hearing,
  • The relevance of evidence and questions, and
  • Effective report writing.

All Title IX administrator training materials shall be available on the college’s Title IX webpage.

 

Filing a Complaint – Notice

The college is on notice of potential sexual harassment when a person gives written or verbal notice to the Title IX coordinator. Notice does not constitute a formal complaint as defined in this procedure.

Any employee, student, applicant, or visitor who believes that they have been the subject of sexual harassment should report the incident or incidents through the online reporting form at www.bellevuecollege.edu/reportconcerns or in writing to one of the following officials with authority (OWA). If the complaint is against one of OWAs, the complainant should report the matter to the president’s office for referral to a neutral and impartial alternate designee, who may be one of the other OWAs.

 

Officials with authority (OWA)

 

Rachel Wellman, Title IX Officer

3000 Landerholm Circle, Office C227, Bellevue, WA 98007

Phone: 425.564.2641

Email: rachel.wellman@bellevuecollege.edu

 

Jill Powell-Szep, Title IX Coordinator

3000 Landerholm Circle, Office C227, Bellevue, WA 98007

Phone 425-564-2704

Email: jill.powell@bellevuecollege.edu

 

NAME, Vice President of Human Resources

3000 Landerholm Circle, Office BXXX, Bellevue, WA 98007

Phone: 425.564.2178

Email:

 

Megan Kaptik, Student Conduct Manager

3000 Landerholm Circle, Office U307B, Bellevue, WA 98007

Phone: 425.564.2757

Email: megan.kaptik@bellevuecollege.edu

 

Confidentiality

The college will seek to protect the privacy of the complainant to the fullest extent possible, consistent with the legal obligation to investigate, take appropriate remedial and/or disciplinary action, and comply with the federal and state law, as well as college policies and procedures. Although the college will attempt to honor complainants’ requests for confidentiality, it cannot guarantee complete confidentiality. Determinations regarding how to handle requests for confidentiality will be made by the Title IX coordinator.

The Title IX coordinator will inform and attempt to obtain consent from the complainant before commencing an investigation of reported sexual harassment. If a complainant asks that their name not be revealed to the respondent or that the college not investigate the report, the Title IX coordinator will inform the complainant that maintaining confidentiality may limit the college’s ability to fully respond to the report and that retaliation by the respondent and/or others is prohibited. If the complainant still insists that their name not be disclosed or that the college not investigate, the Title IX coordinator will determine whether the college can honor the request and at the same time maintain a safe and nondiscriminatory environment for all members of the college community, including the complainant. Factors to be weighed during this determination may include, but are not limited to:

  • The seriousness of the reported sexual harassment;
  • The age of the complainant;
  • Whether the sexual harassment was perpetrated with a weapon;
  • Whether the respondent has a history of committing acts of sexual harassment or violence or has been the subject of other sexual harassment or violence complaints or findings;
  • Whether the respondent threatened to commit additional acts of sexual harassment or violence against the complainant or others; and
  • Whether relevant evidence about the reported incident can be obtained through other means (e.g., security cameras, other witnesses, physical evidence).

If the college is unable to honor a complainant’s request for confidentiality, the Title IX coordinator will notify the complainant of the decision and ensure that complainant’s identity is disclosed only to the extent reasonably necessary to effectively conduct and complete the investigation in compliance with this Grievance Procedure.

The college decides not to conduct an investigation or take disciplinary action because of a request for confidentiality, the Title IX coordinator will evaluate whether other measures are available to address the circumstances giving rise to the complaint and prevent their recurrence and implement such measures if reasonably feasible.

In the case where there is suspected abused of a minor, college employees are considered mandatory reporters under policy 1470, Mandatory Reporting of Child Abuse.

 

Emergency Measures

In certain instances, the Title IX coordinator may request restrictions on a respondent’s ability to participate in the college’s educational program or activities, up to and including entirely removing or partially limiting a respondent’s participation. Emergency measures are implemented only after there is a determination that they are necessary in order to address an immediate threat to health or safety or significant disruption to college operations. Violation of an emergency measure may be grounds for discipline, up to and including dismissal or termination.

Before requesting or implementing an emergency measure, the Title IX coordinator will meet with appropriate officials. If the respondent is a student, the meeting will include the student conduct manager or designee. In cases involving an employee respondent, the meeting will include human resources and may also include a supervisor in the employee’s direct line of supervision and /or others as appropriate. Together they will determine if the circumstances justify any emergency measures. Emergency measures will be subject to any applicable human resource or student conduct processes.

If a student respondent poses an immediate threat to the health and safety of the college community or an immediate threat of significant disruption to college operations, the college’s student conduct manager may summarily suspend a respondent pursuant to WAC 132H-126-170, pending final resolution of the allegations.

The Title IX coordinator may modify or stop any emergency measure if they determine that an emergency measure is no longer effective as implemented. The exception is a summary suspension or employee administrative leave which will follow the appropriate human resource or student conduct processes. If an emergency measure is modified or stopped, all parties will be notified in writing.

Nothing in this Grievance Procedure prohibits the college from placing nonstudent employees on administrative leave pending final resolution.

 

Initial Assessment

After the Title IX coordinator(s) receives notice, they assess the matter to determine next steps.

  • The Title IX coordinator first assesses the matter to determine whether it falls within this Title IX procedure and, if so, will proceed as outlined. If it falls outside of this procedure, the Title IX coordinator will discuss with the complainant other options or courses of action that may be available.
  • If the Title IX coordinator received notice, but no complaint, the Title IX coordinator will offer supportive measures to the complainant regardless of whether a formal complaint is filed; seek to determine if the person who was the target of the unwelcome conduct wishes to make a formal complaint, and will assist them to do so, if desired. If they do not wish to make a complaint, the Title IX coordinator will determine whether the matter indicates a compelling threat to health and/or safety of the college community. If such a threat exists, the Title IX coordinator may initiate a complaint.
  • If the Title IX coordinator receives a formal complaint, the Title IX coordinator will:
    • work with the complainant to make sure the complaint is complete.
    • offer supportive measures to the complainant and assure they are aware of the right to have an advisor;
    • work with the complainant to determine whether the complainant prefers a supportive and remedial response, an informal resolution option, or a formal complaint process.
  • If the complainant prefers a supportive and remedial response, the Title IX coordinator will proceed with a supportive and remedial response and will not initiate a formal complaint process, though the complainant can elect to initiate one later.
  • If the complainant prefers an informal resolution process, the Title IX coordinator assesses whether the complaint is suitable for informal resolution, which informal mechanism may serve the situation best or is available and may seek to determine if the respondent is also willing to engage in informal resolution.
  • If the complainant prefers a formal complaint process, the Title IX coordinator will initiate the formal investigation pursuant to the procedures outlined.

 

Supportive Measures

The Title IX coordinator or a designee will offer and implement appropriate and reasonable supportive measures to all parties when it receives notice. Supportive measures will be offered regardless of whether a complaint is filed, or the matter reported falls within this procedure.

To the extent permissible under applicable law, the Title IX coordinator will minimize disclosure of the facts underlying the need to impose the supportive measures, provided that such non-disclosure does not impair the college’s ability to provide the supportive measures. Supportive measures will be implemented on a case-by-case basis in a manner that does not unreasonably burden the other party.

 

Dismissal (Mandatory and Discretionary)

  • Mandatory Dismissal:
    • The college must dismiss a formal complaint if, at any time during the investigation or hearing, it is determined that the matter does not fall within the scope of this procedure, specifically if the reported behavior:
    • Does not meet the definition of sexual harassment under Title IX, even if proved; or
    • Did not occur in the context of a college education program or activity; or
    • Occurred outside the United States.
  • Discretionary Dismissal: The college may dismiss a formal complaint if, at any time during the investigation or hearing:
    • A complainant notifies the Title IX coordinator in writing that the complainant would like to withdraw the formal complaint in whole are in part; or
    • the respondent is no longer enrolled in the college; or
    • specific circumstances prevent the college from gathering evidence sufficient to reach a determination.
  • Upon any dismissal, the college will serve the parties written notice of the dismissal including the rationale for dismissal and information about whether the complaint is being referred for review under another policy.
  • A complainant who decides to withdraw a complaint may later request to reinstate it or refile it.
  • Any party may appeal a dismissal under the procedures for appeal.
  • Mandatory or discretionary dismissal of a Title IX claim does not preclude the college from investigating and pursuing discipline under other federal or state laws and regulations, college conduct policies, and/or other codes and contractual provisions governing student and employee conduct. The Title IX coordinator will evaluate the matter to determine if the complaint should be forwarded for review under another policy.

 

Appeal

  • The parties have the right to appeal the initial order determination of responsibility and/or the Title IX dismissal, in whole or part. Appeals must identify the specific findings of fact and/or conclusions of law in the initial order or dismissal and must contain an argument as to why the appeal should be granted. The following include, but are not limited to grounds for appeal:
    • procedural irregularity that affected the outcome of the matter;
    • the discovery of new evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made and that could affect the outcome of the matter; and
    • the Title IX coordinator, investigator, decisionmaker(s), or hearing facilitator had a conflict of interest or bias for or against complainants or respondents generally or for or against the specific complainant or respondent and the bias or conflict affected the outcome of the matter.
  • Either party may file a written notice of appeal within twenty-one (21) days of service of the initial order or dismissal. The appeal officer will determine whether the grounds for appeal have merit and is timely, provide the rationale for this conclusion, and provide notification in writing to the parties.
  • The appeal officer will notify the Title IX coordinator when an appeal is received. They will also notify the investigator, original decisionmaker and/or hearing facilitator if they are accused of bias, conflict of interest or procedural irregularity.
  • Generally, failure to file a timely notice of appeal constitutes a waiver of the right to appeal and the initial order or dismissal shall be deemed final. A party may request in writing to extend the timeline of the appeal in extenuating circumstances. The appeal officer will determine if the request will be granted and notify all parties in writing of the revised timeline.
  • Upon receiving a timely notice of appeal, the appeal officer will serve a copy of the notice on the other party, who will have ten (10) days from the date of service to submit their own written responses to the appeal officer, who will distribute copies to the parties, as necessary.
  • Similarly, the Title IX coordinator, investigator, and/or the decisionmaker(s) or hearing facilitator may submit a response if the person filing the appeal has asserted that an impermissible source of bias or conflict of interest or if a procedural irregularity had an impact on the decision.
  • The appeal officer will forward all responses to the appealing party and all other involved persons for review and comment. The appealing party may submit comments in reply to the appeal officer within three (3) days after receiving the responses.
  • The appeal officer 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.
  • The appeal officer shall serve the final decision on the parties simultaneously.
  • Final orders reached through this process constitute final agency action and are subject to judicial review pursuant to the Administrative Procedure Act, RCW 34.05. No decisions or recommendations arising from this disciplinary procedure will be subject to grievance pursuant to any Collective Bargaining Agreement.

 

Countercomplaints

The college allows a respondent to make a complaint against a complainant who has already made a complaint against that respondent. Such a complaint is referred to here as a countercomplaint.

The initial assessment described above is used to assess whether the reported behavior in the countercomplaint is made in good faith.

Countercomplaints that are made in good faith will be treated in the same manner as a complaint, except that investigation of a countercomplaint may take place after resolution of the underlying initial report, in which case a delay may occur. At the discretion of the Title IX coordinator, the college may also resolve countercomplaints through the same investigation as the underlying complaint.

Countercomplaints that are not made in good faith will be considered retaliatory and may constitute a violation of this procedure. Countercomplaints made with retaliatory intent will not be permitted and may be adjudicated as an incident of retaliation.

 

Informal Resolution Process

The Informal resolution process is a resolution process that does not involve a full investigation or adjudication of a complaint as described in the formal complaint process and requires voluntary participation of the parties. Informal resolutions may encompass a broad range of strategies to resolve the conflict or matter between the parties. However, informal resolution may not be appropriate in all situations. Certain matters, such as those that involve violence or substantial power differentials may not be appropriate for informal resolution. Informal resolution is not appropriate when the report involves a mandatory reporting situation, an immediate threat to the health, safety or welfare of a member of the college community, or in cases where an employee is alleged to have sexually harassed a student.

The Title IX coordinator has the authority to determine whether a matter is appropriate for an informal resolution process. If an informal resolution is appropriate, the parties may explore remedies or resolution through such things as:

  • Guided conversations or communications conducted by a member of the Title IX team or a mutually agreed upon third party, approved by the Title IX officer;
  • Structured resolution process conducted by a trained mediator; or
  • Voluntarily agreed on alterations of such things as work or class schedules or student housing arrangements.

The Title IX coordinator generally will seek a process that has the following characteristics:

  • The process results in a resolution that is final, written, and satisfactory to both parties.
  • The resolution seeks to prevent future instances of sexual harassment.
  • The resolution seeks to remedy any past sexual harassment and allows any wronged party the opportunity to participate fully in the college’s education program or activity.
  • If the parties decide to engage in an informal resolution process, the Title IX coordinator will ask for each party’s voluntary written consent. The Title IX coordinator will provide each party with a notice disclosing the reported behavior(s), the requirements of the informal resolution process, and any consequences that might result.

The informal resolution process is voluntary; no party is ever obligated to engage in an informal resolution process. Either party may withdraw from an that process and resume the formal complaint process at any time before a resolution. However, if the parties reach a resolution in an informal resolution process, they are each precluded from using the formal complaint process to resolve the matters covered by the completed informal resolution process.

If the impacted and responding party voluntarily resolve a report, the college will record the terms of the resolution in a written agreement signed by both parties and provide written notice to both parties that the report has been closed.

 

Formal Complaint Process

The Formal complaint process means that the complainant’s report of sexual harassment will be subjected to a formal investigation by an impartial and unbiased investigator. The investigator will issue a report of the investigation findings. Upon completion of the investigation, the investigator will submit the final investigation report to the appropriate disciplinary authority to determine whether disciplinary proceedings are warranted.

  • Right to an Advisor – A party may have an advisor of their choice present with them for all meetings and interviews during the formal complaint process, if they so choose. A party may select whoever they wish to serve as their advisor(s) as long as the advisor is eligible and available. A party may choose advisors from inside or outside of the BC community.
    • A party is entitled to choose their own advisor, who may be an attorney or union representative, to attend any grievance related meeting or interview.
    • A party is required to have an advisor at a Title IX hearing. Only an advisor is permitted to conduct cross examination during the Title IX hearing. (A party is not permitted to conduct cross examination.) If a party does not have an advisor, the college will assign an advisor. Although the college provides advisors, it will not “match” the type of one party’s advisor to the type retained by the other party. For example, the college will not provide an attorney if the other party has an attorney as an advisor.
    • An advisor’s role during the investigation meetings or interviews will be limited to providing support and advice to the party. Advisors will not represent or otherwise advocate on behalf of the parties during the investigation process.
    • An attorney representing a party must enter a notice of appearance with the Title IX coordinator and the investigator at least five (5) business days before the initial interview or meeting they plan to attend, so that the college can secure its own legal representation, if necessary.
  • Investigation Notices – Upon receiving a formal complaint and determining that it comports with Title IX guidelines, the college will serve the written notice of the investigation (NOI) to the parties in advance of the initial interview. This informs the complainant that the college has commenced the investigation and provides the respondent sufficient time to prepare a response and to select an advisor. The college may amend or update the NOI as the investigation progresses and more information becomes available. The NOI may be delivered in person or by first class, registered, or certified mail, or by electronic mail to the parties’ college-issued email. If delivered via email, the college deems the notice delivered once it is emailed. The NOI contains:
    • A description of the conduct reported, date and location of the reported incident(s) (if known), the identities of the parties (if known), and policies that the behavior may have violated;
    • A statement that the respondent is presumed not responsible for the reported conduct and that the college will not make a final determination of responsibility until after the grievance and disciplinary processes have been completed and a description of the applicable procedures;
    • A notice that parties that they are entitled to have an advisor of their own choosing, who may be an attorney and/or, if the party is a represented employee, a union representative, and the requirement to have an advisor at the hearing;
    • A notice that parties they have a right to review and inspect relevant evidence;
    • Inform parties that knowingly making false statements, including submitting false information, is prohibited and a violation of policy;
    • Information on how a party may request disability accommodations;
    • The name(s) of the investigator(s); along with how a party may inform the Title IX coordinator about any conflict of interest that the investigator(s) may have before the interview;
    • A statement of the potential sanctions/responsive actions that could result;
    • Interview and meeting notices. The college shall provide the party with a written notice identifying the date, time, location, participants, and purpose of the interview or meeting with sufficient time for the party to prepare for the interview or meeting. Notices will be sent to the party’s college-issued email and will be considered delivered once it has been emailed.
  • Investigation Process – Consolidation of Formal Complaints
    • When multiple sexual harassment reports by or against different parties arise out of the same facts or circumstances, the college may consolidate the investigation of formal complaints, provided consolidation can be accomplished in compliance with confidentiality protections imposed by the Family Educational Records and Privacy Act (FERPA). The privacy of employee records will be protected in accordance with Human Resources policies
    • This includes instances in which complainant and respondent have lodged formal complaints against one another or when reports of sexual assault are lodged by a single complainant against multiple respondents, or when multiple complainants lodge sexual assault complaints against single or multiple respondents.
  • Investigation Process – Required Procedures
    • Each party and relevant witnesses are interviewed during the investigation and relevant evidence is obtained. The investigator may conduct interviews remotely at their discretion. The college will take appropriate steps to reasonably ensure the security/privacy of remote interviews. Investigative meetings, whether conducted in person or remotely, are not typically recorded and no person may make an audio or video or digital recording of any kind of any meeting in an investigation without consent of all individuals present.
    • During the investigation, the investigator:
      • Will provide the parties with equal opportunity to present relevant statements, and other evidence in the form of fact or expert witnesses and inculpatory or exculpatory evidence.
      • Will not restrict the ability of either party to discuss the reported concern under investigation or gather and present relevant evidence, except when a no contact directive has been imposed based on an individualized and fact specific determination that a party poses a threat to the health, safety, or welfare of another party and/or witnesses or when contact with a party and/or witness is prohibited by court order. A college imposed no contact directive shall be no broader than is necessary to protect the threatened party or witness and must provide the impacted party or their advisor with alternative means of gathering and presenting relevant evidence from the protected witness and/or party.
      • Will allow each party to be accompanied by an advisor of their choosing, who may be an attorney, or union representative to any grievance related meeting or interview. An advisor’s role during the investigation meetings or interviews will be limited to providing support and advice to the party. Advisors will not represent or otherwise advocate on behalf of the parties during the investigation process. An attorney representing a party must enter a notice of appearance with the Title IX coordinator and the investigator at least five (5) business days before the initial interview and any other interview or meeting they plan to attend, so that the college can secure its own legal representation, if necessary.
      • The investigator will provide both parties and their respective advisors with an equal opportunity to review the draft investigation report and to inspect and review any evidence obtained during the investigation that is directly related to the reported behaviors raised in the formal complaint, including inculpatory or exculpatory evidence, regardless of its source, as well as directly related evidence upon which the investigator does not intend to rely in the final investigation report. After disclosure, each party will receive ten (10) business days in which to submit a written response, which the investigator will consider prior to completion of the investigation report. If a party fails to submit a written response within ten (10) business days, the party will be deemed to have waived their right to submit comments and the investigator will finalize the report without this information.
      • The investigator will forward the final report to the Title IX coordinator, who will distribute the report to the appropriate authority for dissemination to the parties, as well as to the disciplinary authority responsible for determining whether pursuing disciplinary action is warranted.

 

Evidence

The investigator will provide both parties and their respective advisors with an equal opportunity to review the draft investigation report and to inspect and review any evidence obtained during the investigation that is directly related to the reported behaviors raised in the formal complaint, including inculpatory or exculpatory evidence, regardless of its source, as well as directly related evidence upon which the investigator does not intend to rely in the final investigation report.

Evidence that seeks to disclose privileged communication is not allowed, cannot be relied upon, and cannot be the subject of questions, unless the privilege has been effectively waived by the holder. This provision applies, but is not limited to information subject to the following:

  • Spousal/domestic partner privilege;
  • Attorney-Client and attorney work product privileges;
  • Privileges applicable to members of the clergy and priests;
  • Privileges applicable to medical providers, mental health therapists, and counsellors;
  • Privileges applicable to sexual assault and domestic violence advocates; and
  • Other legal privileges identified in RCW 5.60.060.

The standard of proof used to determine a policy violation is preponderance of evidence, meaning that “it is more likely than not”.

Non-Retaliation, Intimidation, and Coercion

Any person who believes that they are being retaliated against in violation of this procedure should report the matter to the Title IX coordinator.

Retaliation by, for or against any participant (including but not limited to complainant, respondent, witness, Title IX officer/coordinator, or investigator) is expressly prohibited. Retaliatory action of any kind taken against an individual seeking redress under the applicable procedures or against any participant in subsequent processes is conduct subject to discipline.

Complaints that a student violated this prohibition on retaliation will be addressed under the college policy 2050, Student Conduct Code. Complaints that an employee violated this prohibition on retaliation will be addressed under college policy 1440, Discrimination, Harassment and Retaliation.

 

Revision of this Procedure

This procedure and related policy supersede any previous policy(ies) addressing sexual harassment and retaliation under Title IX of the Amended Education Act of 1972. If government laws or regulations change – or court decisions alter – the requirements in a way that impacts this procedure and related policy, they will be construed to comply with the most recent government laws or regulations or applicable court decisions.

During the resolution process of any Complaint, the Title IX coordinator may make minor modifications to procedures under this policy as applied to that matter if the modifications do not materially jeopardize the fairness owed to any party, such as adjusting a deadline to accommodate summer schedules.

Other Discrimination Complaint Options

Discrimination complaints may also be filed with the following federal and state agencies:

Washington State Human Rights Commission

U.S. Department of Education Office for Civil Rights

http://www.eeoc.gov/

Criminal complaints may be filed with:

Bellevue Police Department

RELEVANT LAWS AND OTHER RESOURCES

  • BC procedures 1440P/1440P2
  • BC Policy 1450
  • Title IX of the Educational Amendments of 1972
  • U.S. Department of Education’s Office for Civil Rights
  • Bellevue College Association of Higher Education Collective Bargaining Agreement
  • Washington Public Employees Association Higher Education Collective Bargaining Agreement
  • Washington Federation of State Employees Higher Education Community College Coalition Collective Bargaining Agreement

REVISION HISTORY

9/28/2021 (temporary approval granted by President’s Cabinet – expires 03/28/22)

APPROVED BY

President’s Cabinet

 

Last Updated October 19, 2021