1445P2 Title IX Employee Disciplinary Hearing (Procedures)

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 of Human Resources

PURPOSE

The following procedures are established to meet the requirements for implementing policy #1445 – Title IX Sexual Harassment.

PROCEDURES

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 U.S. Department of Education. See 34 C.F.R. § 106. Disciplinary proceedings against an employee respondent reported to have engaged in sexual harassment in violation of Title IX shall be governed by Bellevue College’s administrative hearing practices and procedures, Chapter WAC 132H-108, and this supplemental hearing procedure. To the extent the supplemental hearing procedure conflicts with WAC 132H-108, and/or provisions set forth in employment contracts, collective bargaining agreements, employee handbooks, and other college employment policies and procedures, this supplemental hearing procedures will take precedence.

 

Notwithstanding the foregoing, if the respondent is a tenured or probationary faculty member and the vice president of human resources determines that the allegations in the investigation, if true, would warrant the respondent’s dismissal from the college, the vice president of human resources will refer the matter to the tenure dismissal committee for a hearing pursuant to RCW 28B.50.863 and applicable procedures set forth in the faculty union Collective Bargaining Agreement (CBA). To the extent the tenure dismissal procedures are inconsistent or conflict with Sections II through VII of this supplemental procedure, those supplemental procedure sections will prevail. At the end of the hearing, the tenure dismissal committee will issue a recommendation consistent with the provisions set forth in Section VIII. The complainant shall have the same right to appear and participate in the proceedings as the respondent, including the right to present their position on the recommendation to the president before final action is taken.

Prohibited Conduct Under Title IX

Pursuant to Title IX of the Education Act Amendments of 1972, 20 U.S.C. § 1681, the college 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:

  • 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 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.

Title IX Jurisdiction

  • This supplemental procedure applies only if the reported misconduct:
    1. Occurred in the United States;
    2. Occurred during a college educational program or activity; and
    3. Meets the definition of sexual harassment as that term is defined in this supplemental procedure.
  • For purposes of this supplemental procedure, an “educational program or activity” is defined as locations, events, or circumstances over which the college exercises substantial control over both the respondent and the context in which the reported sexual harassment occurred. This definition includes any building owned or controlled by a student organization that is officially recognized by the college.
  • At the time of filing a report, the complainant must be participating in or attempting to participate in a college education program or activity.
  • Proceedings under this supplemental procedure must be dismissed if, at any point after initiating disciplinary action, the labor relations officer or vice president of human resources determines that one or all of the requirements of Section A (1)-(3) have not been met. Dismissal under this supplemental procedure does not prohibit the college from pursuing disciplinary action against a respondent based on allegations that the respondent engaged in misconduct prohibited by federal or state law, employment contracts or handbooks, or other college policies.
  • If the labor relations officer determines the facts in the investigation report are not sufficient to support Title IX jurisdiction and/or pursuit of a Title IX violation, the labor relations 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.

Initiation of Discipline

Upon receiving the Title IX investigation report from the Title IX coordinator, the labor relations 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.

If the labor relations officer determines that there are sufficient grounds to proceed under these supplemental procedures, the labor relations officer will initiate a Title IX disciplinary proceeding by filing a written disciplinary notice with the vice president of human resources (or designee) 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 reported Title IX violation(s);
  3. Set forth the facts underlying the reported behavior(s);
  4. Identify the range of possible sanctions that may be imposed if the respondent is found responsible for the reported violation(s);
  5. Explain that each party is entitled to be accompanied by an advisor of their own choosing during the hearing and that:
    • Advisors will be responsible for questioning all witnesses on the party’s behalf;
    • An advisor may be an attorney and/or, if the party is a represented employee, a union representative;
    • 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;
    • The college will appoint the party an advisor of the college’s choosing at no cost to the party, if the party fails to choose an advisor; and
  6. Explain that if a party fails to appear at the hearing, a decision of responsibility may be made in the party’s absence.

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 college issued email address.

Pre-hearing Procedure

Upon receiving the disciplinary notice, the hearing officer will send a hearing notice to all parties in compliance with WAC 10-08-040. The hearing date may not be scheduled less than ten (10) days after the final investigation report is provided to the parties.

In preparation for the hearing, the parties will have equal access to all relevant evidence gathered by the investigator during the investigation, regardless of whether the college intends to offer the evidence at the hearing, with the exception of privileged evidence wherein the privilege has not been waived.

Advisors

A party is entitled to be accompanied by an advisor during all aspects of the disciplinary process.

Parties are required to have an advisor at the 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 choose an advisor, the vice president of human resources (or designee) will appoint an advisor of the college’s choosing on the party’s behalf at no expense to the party.

Parties may choose their own advisor, at the party’s own expense. The advisor may be an attorney or, if the party is a represented employee, a union representative.

  1. If the advisor is an attorney, the advisor must file a notice of appearance with the hearing officer with copies to all parties and the vice president of human resources 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 their right to have an attorney as an advisor.
  2. If a party is a represented employee who chooses not to use a union-provided advisor, the party must provide the vice president of human Resources (or designee) with a signed waiver of union representation, including written consent from the union.

Rights of Parties

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

The college 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.

The respondent will be presumed not responsible for the reported misconduct unless or until such time as the disciplinary process has been finally resolved.

During the hearing, each party is required to 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.

Evidence

The introduction and consideration of evidence during the hearing is subject to the following procedures and restrictions:

  • Question relevance: The vice president of human resources (or designee) shall review all questions for relevance and shall explain on the record their reasons for excluding any question based on lack of relevance.
    • Relevance means that information elicited by the question makes a fact in dispute more or less likely to be true.
    • 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:
      • Is asked or offered to prove someone other than the respondent committed the reported misconduct; or
      • Concerns specific incidents of prior sexual behavior between the complainant and the respondent, which are asked or offered on the issue of consent.
  • Cross-examination required.
  • No negative inference: The hearing officer may not make an inference regarding responsibility solely on a witness’s or party’s absence from the hearing or refusal to answer questions.
  • Privileged evidence: The hearing officer 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

Initial Order

The vice president of human resources (or designee) 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, complainant is entitled to remedies designed to restore or preserve complainant’s equal access to the college’s education programs or activities; and
  8. Describes the process for appealing the initial order to the college president.

The hearing officer will serve the initial order on the parties simultaneously.

Appeals

The parties have the right to appeal from the initial order 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.

Appeals are limited to the following grounds:

  1. Procedural irregularity that affected the outcome of the matter;
  2. 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
  3. 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.

Any party may file an appeal within 21 days of the delivery of the initial order. The appeal must be filed in writing or electronically with the appeal decisionmaker (AD).

  1. The AD 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.
  2. The AD will notify the Title IX coordinator when an appeal is received. The AD will also notify the investigator, original decisionmaker and/or hearing facilitator if they are accused of bias, conflict of interest or procedural irregularity.
  3. If a party files an appeal after the above time period, the AD will determine if the appeal may be accepted for extenuating circumstances.
  4. Within seven days after receiving the notice of appeal from the AD, the other party may submit a response to the appeal. 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 AD 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 AD within three days after receiving the responses.

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.

The president or president’s designee shall serve the final decision on the parties simultaneously.

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.

DEFINITIONS

Appeal Decisionmaker (AD) is the college president, or designee identified to review and make a determination on appeals for determination of responsibility, and dismissal of a formal complaint or any allegations therein. The AD 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.

Labor Relations Officer is a college administrator designated by the vice president of human resources (or designee) to be responsible for implementing and enforcing these supplemental Title IX employee disciplinary hearing procedures. The vice president of human resources (or designee) is authorized to reassign any and all of the labor relations officer’s duties or responsibilities, as set forth in this procedure, as may be reasonably necessary.

RELEVANT LAWS AND OTHER RESOURCES

  • BC Policy 14451445P
  • 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

Original 09/28/2021 (temporary approval granted by President’s Cabinet – expires 03/28/22)

APPROVED BY

President’s Cabinet

Last Updated October 19, 2021