POL-U1600.02 Prohibiting Discrimination Based on A Protected Class (Interim)

All forms of discrimination based on race, ethnicity, color, national origin, age, citizenship or immigration status, use of protective leave, genetic status, marital status, creed, religion, veteran or military status, and disability or the use of a trained guide dog or service animal (or service animal-in-training) by a person with a disability.

1. An employee whose communications are privileged or confidential under Federal or State law. The employee’s confidential status, for purposes of this part, is only with respect to information received while the employee is functioning within the scope of their duties to which privilege or confidentiality applies. (i.e. Doctors, counselors, other healthcare workers in a patient services setting).  
    
2. An employee whom WWU has designated as confidential for the purpose of providing services to persons related to discrimination based on a protected class. If the employee has a duty not associated with providing those services, the employee’s confidential status is only with respect to information received about discrimination based on a protected class in connection with providing those services.

Consequences imposed on a Respondent following a determination that the Respondent violated this policy.

The procedures WWU uses to document concerns, provide supportive measures, informally resolve, and/or investigate formal complaints under this policy.

All of the operations of the University, including locations, events, or circumstances in which WWU exercised substantial control over both the Respondent and the context in which the alleged discrimination or harassment occurred. It  also includes any building or property owned or controlled by a student organization officially recognized by WWU.

Generally, expressive activities are considered protected under the first amendment of the U.S. Constitution and corollary provisions of the Washington State Constitution. Other university policies may define reasonable time, place, and manner restrictions on expressive activities. Expressive activities may cross the line into unprotected speech if they represent conduct that meets all of the conditions of one or more of the specific types of discrimination based on sex, defined in this policy, taking into consideration the totality of the circumstances, including:  

• The time, place, and manner of the expressive activities,
• The context of the environment in which the expressive activities took place, 
• The roles and relative positions of the parties involved, 
• Whether or not the expressive activities are targeted toward a specific individual or a group of specific individuals,
• Whether or not the expressive activities serve a legitimate lawful purpose, and
• Whether or not the expressive activity is rationally related to the stated purpose of an academic program or activity such that it falls under the category of academic freedom. 

A decisionmaker shall not consider legally privileged information unless the individual holding the privilege has effectively waived the privilege. Privileged information includes, but is not limited to, information protected by 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 doctors, mental health professionals, and other healthcare workers;
Privileges applicable to sexual assault and domestic violence advocates; and 
Other legal privileges identified in RCW 5.60.060.

Confidential Consultation to Understand Rights
An impacted party or a third-party reporter may request a confidential consultation to understand their rights and options under this policy. The purpose of such consultations are to discuss the policy, the available resolution processes, potential supportive measures that may be available, and the extent to and under which circumstances information may be shared with other university employees and/or departments. The purpose is not to gather specific details about the concerns. At the conclusion of the consultation, CRTC will ask the individual if they would like to share specific details about their concerns in order to proceed with a resolution process under this policy; it is only at that point that CRTC would start to document the information shared. 

Documentation Only
When an impacted party requests that the University take no action to respond to a report of potential discrimination but requests that the concerns be documented. CRTC carefully evaluates such requests to determine if the concerns may represent an unreasonable threat to the safety to the impacted party, to other individuals, or to the broader University community or if the nature of the concerns are such that they would require investigation even if the impacted party chose not to participate. CRTC strives to respect the wishes of the impacted party on what type of process they would like the University to engage in and it is typically only under rare circumstances that CRTC would be required to move forward with an investigation after an impacted party has requested no further action from the University.

Supportive Measures
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 a formal complaint has been filed. Supportive measures aim to restore or preserve a party’s access to WWU’s education programs and activities without unreasonably burdening the other party, and to provide support during the University’s informal resolution or formal complaint processes, as determined through an interactive process between CRTC and the party. Supportive measures include measures designed to protect the safety of all parties and/or WWU’s educational environment and/or to deter discrimination based on a protected class, retaliation, or interference.

Supportive measures may include, but are not limited to:

• counseling and other medical assistance,
• extensions of deadlines or other course-related adjustments,
• modifications of work or class schedules,
• leaves of absence,
• increased security or monitoring of certain areas of campus, and
• imposition of orders prohibiting the parties from contacting one another in housing or work situations. Determinations about whether to impose a one-way no contact order must be made on a case-by-case basis

Informal Resolution
The University seeks to address concerns at the lowest level possible, where appropriate to do so. Impacted parties may request to pursue informal resolution options which may include administrative remedies, various forms of mediation or alternative dispute resolution, and other measures designed to preserve all parties’ continued access to University programs and activities while not unreasonably burdening any party. Informal resolutions do not include disciplinary sanctions. 

Formal Complaint
A request from an impacted party, either orally or in writing, alleging discrimination based on a protected class, retaliation, or interference against a Respondent and requesting that WWU investigate. When necessary and appropriate, the Director of CRTC, or their designee, may submit a signed written complaint to initiate an investigation in the absence of a formal complaint from an impacted party.

In order to proceed with an investigation CRTC must make a determination that the allegations and the formal complaint meet the following:    

1. The Complainant’s and Respondent’s status or role at the University, where and when the conduct occurred, are within the jurisdiction and scope of this policy, 
2. It is alleged that the complainant has been subjected to conduct that would meet one of the violation standards defined in this policy.,
3. There is alleged to be a causal nexus establishing that the alleged conduct is based on a protected class, and
4. There is alleged to be evidence (some document, observation, or other information) reasonably available that would allow the investigator to make factual determinations related to the allegations.

Reasonable and/or objective
A standard by which to measure or determine facts and conclusions by contemplating a hypothetical person similarly situated to an individual whose conduct, conclusion, or expectation in relation to a particular circumstance is under consideration, using an ordinary degree of reason, prudence, care, foresight, or intelligence to consider the relevant particularized characteristics, perspectives, identities, and circumstances of the individual.

Relevant or Relevance
A question or evidence that is related to the allegations of discrimination based on a protected class at issue. Questions are relevant when they seek evidence that may aid in showing whether the alleged discrimination based on a protected class occurred, and evidence is relevant when it may aid a decisionmaker in determining whether the alleged discrimination based on a protected class occurred.

Remedies
Measures provided, as appropriate, to a Complainant or any other person the University identifies as having had their equal access to the University’s education program or activity limited or denied by discrimination based on a protected class. These measures are provided to restore or preserve that person's access to the University’s education program or activity after the University determines that discrimination based on a protected class has occurred.

Impacted Party
An individual who is alleged to have been subjected to conduct that could constitute a violation of this policy.

Complainant
An impacted party that actively requests (verbally, or in writing) the university to investigate the allegation under the formal complaint process, or to initiate the alternative resolution agreement process.

Respondent
An individual who is alleged to have engaged in conduct that could constitute a violation of this policy. 

Third-Party Reporter
An individual who did not experience the conduct themselves, but reports conduct that could constitute a violation of this policy.

Witness
An individual other than an Impacted Party, Complainant, or Respondent, who participates or could participate in a CRTC process by sharing information, observations, or evidence.

Support Person/Advisor
An individual who accompanies a Complainant or Respondent to meetings with CRTC to provide support, comfort, advice, or consultation. This individual may be an attorney or a union representative. In order to preserve the integrity of the process and the evidence gathered this individual should not be someone who is a critical witness or otherwise a party to the case.

Any person who:

1. Has been formally admitted to the University;
2. Is enrolled in one or more classes at the university, including nonmatriculated international students attending language institutes or foreign study programs;
3. Is participating in a certificate, degree, distance learning, or professional enrichment program, through extended education and summer programs;
4. Is participating in a university-sponsored study abroad program;
5. Was enrolled in a prior quarter or summer session at the university and is eligible to continue enrollment in the quarter or summer session that immediately follows; or
6. Withdrew from the university after an alleged violation of the Student Conduct Code, for conduct that occurred while they were enrolled in or participating in a program offered by the university [WAC516-21-020]

Disparate Treatment
Treating a group, or groups, less favorably than another group based on a protected class, where the negative impact on the less favored group is more than de minimus. Evidence of intent is required to substantiate a complaint of disparate treatment discrimination. Some disparate treatment may not constitute unlawful discrimination to the extent specified as permissible under Title VII of the Civil Rights Act of 1964, or other state and federal civil rights laws.

Disparate Impact
Policies or practices that appear facially neutral yet have a disproportionate, adverse impact on a group or population based on a protected class when the policy or practice lacks substantial legitimate justification. Evidence of intent is not required to substantiate a complaint of disparate impact discrimination.

Hostile Environment
Unwelcome conduct based on a protected class, when considering the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the University’s education program or activity (i.e., creates a hostile environment). Whether a hostile environment has been created is a fact specific inquiry that includes consideration of the following:

1. The degree to which the conduct affected the Complainant’s (or impacted party’s) ability to access the University’s education program or activity;
2. The type, frequency, and duration of the conduct;
3. The parties’ roles within the University’s education program or activity, previous interactions, and other factors about each party that may be relevant to evaluating the effects of the conduct;
4. The location of the conduct and the context in which the conduct occurred; and 
5. Other discriminatory harassment in the University’s education program or activity

Retaliation
Intimidation, threats, coercion, or discrimination against any person by the University, a student, an employee, or any other person authorized by the University to provide aid, benefit, or service under the University’s education program or activity, for the purpose of interfering with any right or privilege secured by Title IX or this policy, or because the person has reported information, made a complaint, testified, assisted, or participated or refused to participate in any manner in an investigation proceeding or hearing under this policy, including an informal resolution process, in the sex-based discrimination intake and resolution procedures, and any other actions taken by the University under this policy.  or other person authorized by the University to provide aid, benefit, or service under the University’s education program or activity, to participate as a witness in, or otherwise assist with, an investigation, proceeding, or hearing under this policy.

Interference
Adverse action, which may include intimidation, threats, coercion, or discrimination against any individual which has the purpose or effect of unreasonably dissuading a person from making a report or complaint, or participating in an investigation, proceeding, hearing, or any other process under this policy.

Failure to Comply with State or Federal Civil Rights Obligation
An employee who fails to implement a decision or action that is required under a state or federal civil rights law, where that decision or action is reasonably considered to be within the scope of the employee’s job duties, and where that failure did or could have resulted in an unreasonable negative impact on an individual’s ability to participate in the University’s education programs or activities. Even where no negative impact to an individual results, an employee may be subject to disciplinary or corrective action under this provision where the employee openly refuses to comply with the obligation, or where there is a documented pattern of failing to comply.

Failure to Comply with Employee Required Reporting Obligation
An employee who fails to report to CRTC as required under this policy, and where that failure did or could have resulted in an unreasonable negative impact on an individual’s ability to participate in the University’s education programs or activities. Even where no negative impact to an individual results, an employee may be subject to disciplinary or corrective action under this provision where the employee openly refuses to comply with the obligation, or where there is a documented pattern of failing to comply.

Filing a False Complaint or Providing False Information
A complainant, respondent, or witness knowingly giving false or misleading information, or knowingly submitting a false complaint. False complaints are generally rare but are considered to be serious misconduct. An investigation that concludes without a finding of a violation of this policy is not evidence, by itself, of a false complaint and cannot be the sole basis for a charge of a false complaint.