Compliance

Process for formal complaints of sexual harassment

University of Washington policies that address sexual misconduct by employees include Executive Orders No. 31, 51, 54, and 70. Executive Order No. 70 addresses regulations created by the U.S. Department of Education that pertain to Title IX, a federal law aimed at preventing discrimination based on sex in education programs or activities. These policies, combined, address sexual harassment and other sexual misconduct that is alleged to have been committed by university employees, including faculty and other academic personnel.

The Department of Education’s Title IX regulations (EDFR) and Executive Order No. 70, which implements these regulations at the University, apply to only specific types of allegations. UCIRO investigations may include allegations of both (EDFR) prohibited conduct and conduct that is otherwise prohibited by university policies such as Executive Orders Nos. 31, 51, and 54. For example, in some cases these allegations overlap, and in some cases, the university’s definitions of sexual misconduct are broader—meaning the University prohibits more behavior than the federal regulations. The University’s policies also apply in a greater number of circumstances including, for example, to conduct that occurs off-campus or in connection with study abroad programs. The University’s rules apply to more conduct and in a great number of locations because the work and educational experiences of members of the University community and others who interact with them may still be impacted by sexual misconduct that does meet the narrower federal definitions or that does not occur on the Bothell, Seattle, or Tacoma campuses or within University workplaces.

The University acknowledges these procedures are complex: the EDFR are complex; the regulations and their accompanying commentary are more than 2000 pages and may be found here . EDFR procedures, if they apply at all, do not apply to any misconduct that is alleged to have been committed prior to August 14, 2020.

In general, complaints of EDFR sexual harassment include a mandatory, live hearing and include appeal rights of the decision following the hearing. However, even in cases where EDFR allegations have been made, the university will still make determinations—often before the hearing that must occur if EDFR prohibited conduct was alleged—as to whether other policies, such as Executive Order Nos. 31, 51, or 54, have been violated.

Before a complaint has been made:

  • Supportive measures: Regardless of whether a complainant chooses to request an investigation, they may request supportive measures. They may contact a confidential advocate and/or the Office of the Title IX Coordinator for supportive measures. Subjects (the person who is accused of sexual misconduct) may be eligible for supportive measures as well and should contact the Office of the Title IX Coordinator or Human Resources Consultant (HRC).
  • Before engaging in the process: Complainants may wish to consult with a University confidential advocate to learn more about the grievance process.
  • Also, complainants and subjects may bring two people with them to any meeting with an investigator. They may be accompanied by:
    • An advisor, though an advisor is not required during the investigation phase. Any person may fill this role; this person may or may not be an attorney, i.e. someone licensed to practice law in Washington State. During interviews, this person will not be able to speak on a complainant’s or subject’s behalf, but they may support and advise them. If the complainant or subject selects someone who will be or is likely to be a witness in the process, the chosen advisor will likely have to answer questions about potential bias and conflicts of interest. Complainants or subjects may utilize University personnel, such as a union representative, as advisors during the investigation process when appropriate.  If a complainant or subject wishes to hire someone to serve as their advisor (such as an attorney), the complainant or subject is responsible for any associated costs.
    • A support person. This person may accompany a complainant or a subject to interviews and any hearing, though they may not participate during either. This person is called a “support advisor.” Often, a confidential advocate serves this role for a complainant.

An advisor’s or support person’s unavailability cannot unduly delay the investigation and hearing process, and the University may proceed with the investigation in the absence of an advisor or support person when they are not available.

What to expect during the reporting process and investigation:

  • Intake meeting & formal complaint: At the first meeting with an investigator, a complainant will share information about what happened and likely be asked questions to clarify what they share. They may also provide documents, such as screenshots of social media messages, emails, or anything else that might be helpful, to the investigator and identify additional witnesses the investigator may want to interview. The investigator will provide information about the EDFR proceedings. An investigation of prohibited conduct will not occur until the investigator has received a formal complaint. A formal complaint is a written document that the complainant (or the Title IX Coordinator) submits which alleges sexual misconduct and requests that the university conduct an investigation.
  • Response to complaint: If a complainant files a formal complaint, the investigator will assess the allegations and the University’s jurisdiction. The investigator will assess: whether the conduct alleged would violate University policy and whether the alleged behavior would be prohibited sexual harassment as defined by the EDFR. If the investigator believes the alleged behavior constitutes EDFR sexual harassment, the investigator will also assess the jurisdictional grounds and other criteria required for the EDFR process to apply. In the event that the alleged misconduct as described does not violate University policy, would not constitute behavior defined as EDFR sexual harassment, and/or does not meet jurisdictional and other criteria required for the EDFR process to apply, the complainant will be informed of this. In some cases, the formal complaint will be dismissed in its entirety, and in other cases, an allegation (or several) may be dismissed. It is possible no investigation will be opened; it is also possible an investigation will be opened that does not include allegations of EDFR sexual harassment or follow the EDFR prescribed process. Any dismissal of a formal complaint or allegations contained therein may be appealed by either a complainant or person alleged to have engaged in the conduct that was the subject of the formal complaint. The complainant or subject of the complaint who did not request the appeal will have an opportunity to respond to the appeal request.

 When the investigator determines the alleged misconduct, if proven, would violate University policy or constitute EDFR sexual harassment, the complainant will receive a draft of the allegations for their review, which will be finalized and used to provide notice to the complainant and the subject that an investigation has been opened.

  • Initial notification: If an investigation is initiated, the complainant and the subject will be notified in writing of the allegations and other information about the proceedings. If a specific EDFR allegation(s) is not included or the University determined the 2020 federal Title IX regulations do not apply, the initial notification will state that. In either case, the complainant and the subject will be provided with the opportunity to appeal any decision that the federal regulations do not apply to a specific allegation or formal complaint in its entirety. The notice will provide some specific information, if it is known, about the allegations, such as the identity of the complainant, the date(s) and location(s) of the alleged misconduct, and some factual information about the allegations.
  • Presumption of non-responsibility, standard of proof, and potential sanctions: At the time a formal complaint is made, a subject is presumed to be not responsible for violating university policy or conduct that constitutes EDFR sexual harassment. The determination as to whether a subject is responsible is based on a preponderance of evidence standard (i.e. “more likely than not”).  The potential sanctions for an employee found responsible for violating university policy meeting the EDFR definition of sexual harassment may include all forms of discipline or remediation up to termination of employment. These disciplinary options are also available should the process reveal that an employee’s conduct may not violate University policy but is otherwise unacceptable, inappropriate, or unprofessional.
  • Fact finding: Throughout the investigation, the investigator will conduct separate interviews of the complainant, the subject, and additional witnesses. The investigator will give each person the opportunity to provide an account of what occurred and may ask each witness for documentation. The investigator may communicate with the complainant and subject about documents and other witnesses. After the investigator has interviewed third party witnesses, the investigator may ask to interview the complainant and the subject again. The complainant and subject will be given written notice of any interviews. The fact finding phase is expected to take approximately 60 business days but may take longer to accommodate delays caused by the temporary unavailability of witnesses, collection of evidence, or other reasons.
  • Conclusion of investigation: After thoroughly reviewing the information gathered during the fact finding, the investigator concludes the investigation. The investigator will share with the complainant, the subject, and their respective advisors (if any) the evidence that directly relates to the EDFR allegations. The investigator will also send a draft investigative report that summarizes the evidence the investigator finds relevant. The complainant and subject will have a brief period during which they may respond to the draft report and state any position about the relevance of additional evidence. The investigator will then issue a final investigative report and send that report to the complainant, the subject, and their respective advisors (if any). The complainant, subject, and any advisors may be required to maintain confidentiality with respect to the report and evidence.
  • UCIRO decision not final for EDFR allegations; final for other Executive Orders: The investigator’s decision, if any, about whether the alleged conduct meets the definition of sexual harassment in the EDFR is not final; a hearing officer will make that final decision after a hearing.  The investigator will make a separate determination of whether the conduct violates other University policies, such as Executive Orders No. 31, 51, or 54.  That determination is final and will be reported to the complainant and the subject, and possibly the relevant department, in separate in-person meetings in accordance with UCIRO’s normal practices.

What to expect during a hearing:

  • Process followed: The process followed at the hearing will depend, in part, on an employee’s classification or status, as certain other University policies may apply in addition to the EDFR-required process.
    • Faculty/academic personnel: If the subject is a faculty member or other academic personnel, a hearing will adhere to processes set out in the Faculty Code or other applicable code (for other academic personnel); the process must, however, comply with that prescribed by the Department of Education’s federal regulations.
    • Staff: If the subject is a University employee who is not faculty or other academic personnel, a hearing officer will initiate a hearing and provide notice and information to the complainant and the subject about the hearing.
  • Pre-hearing process: The hearing officer will receive the final investigative report and directly-related evidence gathered by the UCIRO investigator. The complainant and the subject may ask the hearing officer to exclude certain evidence from consideration or include additional evidence and may propose witnesses who should appear at the hearing. The hearing officer will determine which evidence is admissible and which witnesses may testify. If a complainant or subject has failed to identify evidence or witnesses during the investigative portion of the proceedings and do not have a good reason for waiting to identify them until the hearing, the hearing officer may decide to exclude them.
  • Hearing process:
    • Logistics: The hearing will be a live hearing in which the complainant, the subject, and any witnesses participate. The hearing may be conducted in part or entirely via remote technology such as Zoom. The hearing will occur within 60 business days of the final investigative report unless there is a reason for delay. The unavailability of advisors cannot unduly delay a hearing, as the University will appoint an advisor if a party has not chosen one or does not have one. A hearing will occur no earlier than ten calendar days after the final investigative report was issued to the parties and any advisors.
    • Cross-examination: The hearing will feature live cross-examination of the complainant, the subject, and any witnesses. This cross-examination must be conducted by an advisor, who may or may not be an attorney. (Note: while advisor participation is discretionary prior to the hearing, each party must have an advisor to conduct cross-examination at the time of the hearing.) Parties may arrange for an attorney at their own expense. If a party does not arrange for their own advisor, the University will appoint an advisor to conduct the cross-examination. The University-appointed advisor may or may not be an attorney. In addition to the advisor who will conduct cross-examination, a party may also be accompanied by a support person.
    • Guidelines pertaining to hearing: The hearing officer will communicate with the complainant, subject, and their advisors about the specifics of how the hearing will be conducted. For example, the hearing officer may set time limits on hearing argument, specify how evidence is to be introduced or challenged, or establish other details about the mechanics of conducting the hearing.
  • Written determination following hearing: After examining the evidence—including the testimony of the complainant, the subject, and witnesses—the hearing officer will issue a decision in writing. The written decision will be made within 60 business days, absent reasons for delay. This decision may be appealed.

What to expect in an appeal from a hearing:

  • Grounds for appeal: The hearing officer’s decision may be appealed on the following grounds:
    • Procedural irregularity that affected the outcome;
    • New evidence that was not reasonably available at the time of the hearing that could affect the outcome; or
    • The Title IX Coordinator, UCIRO investigator, or Hearing Officer had a bias or conflict of interest that affected the outcome.
  • Appeal requirements: The appeal must be in writing, must state the basis for the appeal, and must either (1) identify the procedural irregularity and how it affected the outcome; (2) identify the new evidence, why it was not reasonably available, and how its absence affected the outcome; and/or (3) identify the bias or conflict of interest and how that bias or conflict of interested affected the outcome. If the appeal is based on previously unavailable evidence, that evidence must be included when the appeal is submitted.
  • Response to appeal: If a party appeals, the other party will be notified, will receive a copy of the appeal, and will have an opportunity to respond to the appeal.
  • Appeal decisions: Appeals will be decided by personnel who were not previously involved in the decision. Appeals will be issued in writing within 30 business days unless there is a reason for delay.

Non-retaliation:  Participants in the grievance process described here may not be punished or retaliated against for their actions if they are made in good faith. Participants who believe they have been retaliated against should contact UCIRO immediately.