POL-U1600.04 Prohibiting Discrimination Based on Sex (Interim)

All forms of discrimination based on sex, sex-based characteristics, sex-based stereotypes, pregnancy and related conditions, gender identity, or sexual orientation.

Unreasonable pressure for sexual activity. Coercive conduct differs from seductive conduct based on factors such as the type and/or extent of the pressure used to obtain consent. When someone makes clear that they do not want to engage in certain sexual activity, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.

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, counsellors, 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 sex. 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 sex in connection with providing those services.

Knowing, voluntary, and clear permission by words or actions, to engage in mutually agreed upon sexual activity. 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.

Consequences imposed on a Respondent following a determination that the Respondent violated 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 based on sex 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. 

The use of physical violence and/or physical imposition to gain sexual access. Force also includes threats, intimidation (implied threats), and coercion that is intended to overcome resistance or produce consent.

Sexual activity that is forced is, by definition, nonconsensual. Silence or the absence of resistance alone is not consent. While resistance is not required or necessary, it is a clear demonstration of nonconsent.

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:          

a. Spousal/domestic partner privilege;
b. Attorney-Client and attorney work product privileges;
c. Privileges applicable to members of the clergy and priests;
d. Privileges applicable to doctors, mental health professionals, and other healthcare workers;
e. Privileges applicable to sexual assault and domestic violence advocates; and 
f. Other legal privileges identified in RCW 5.60.060.

Questions or Evidence about a Complainant’s sexual predisposition or prior sexual behavior are not relevant and must be excluded and will not be considered by the decisionmaker, unless such question or evidence:

a. Is asked or offered to prove someone other than the Respondent committed the alleged misconduct; or
b. Concerns specific incidents of prior sexual behavior between the Complainant and the Respondent, which are asked or offered on the issue of consent.

A person cannot consent if they are unable to understand the nature of the circumstances and the consequences for their actions and the actions of others in a situation that involves sexual contact or sexual intercourse (i.e. the who, what, why, where, and/or when of a situation) for any reason, including, but not limited to: an illness, injury or medical condition causing a mental or cognitive impairment; sleep or unconsciousness; or the impact of drugs or alcohol whether consumed voluntarily, nonvoluntarily, or with or without the impacted party’s knowledge. An individual who subjects another person to sexual activity when the individual knows, or should know, that the other person is physically or mentally incapacitated has engaged in nonconsensual conduct. An individual having diminished awareness due to intoxication is not a legitimate defense to whether they knew or should have known of another person’s incapacitation.

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 sex, 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.

Alternative Resolution Agreement
A voluntary process that provides resolution to formal complaints of discrimination based on sex. For some, pursuing an alternative resolution agreement is an appropriate alternative to a formal investigation. CRTC works with each party to find mutually and voluntarily agreed-upon actions that address and resolve the complaint. 

Either the Complainant or the Respondent may request consideration of an alternative resolution agreement. The process is completely voluntary; both the Complainant and the Respondent must willingly choose to participate in the process. At any time, the Complainant or the Respondent may choose to withdraw from the process, at which point a formal investigation may resume.

Alternative resolution agreements are not always an appropriate option for resolution of a complaint. CRTC will consider the circumstances of the complaint and the desired outcomes of the Complainant and/or the Respondent to determine if the process is appropriate. 

The alternative resolution process is not available where the Respondent has previously participated in an alternative resolution agreement, or where an employee is alleged to have subjected a student to discrimination based on sex. 

Formal Complaint
A request from an impacted party, either orally or in writing, alleging discrimination based on sex, retaliation, or interference against a Respondent and requesting that WWU investigate. When necessary and appropriate, the Title IX Coordinator, 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 sex, 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.

Pregnancy and Related Conditions
a, Pregnancy, childbirth, termination of pregnancy, or lactation;
b. Medical conditions related to pregnancy, childbirth, termination of pregnancy, or lactation; or
c. Recovery from pregnancy, childbirth, termination of pregnancy, lactation, or related medical conditions. 

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 sex at issue. Questions are relevant when they seek evidence that may aid in showing whether the alleged discrimination based on sex occurred, and evidence is relevant when it may aid a decisionmaker in determining whether the alleged discrimination based on sex 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 sex. 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 sex discrimination has occurred.

Roles in the Process

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:

a. Has been formally admitted to the University;
b. Is enrolled in one or more classes at the university, including nonmatriculated international students attending language institutes or foreign study programs;
c. Is participating in a certificate, degree, distance learning, or professional enrichment program, through extended education and summer programs;
d. Is participating in a university-sponsored study abroad program;
e. 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
f. 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 [WAC 516-21-020]

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

Disparate Treatment
Treating a group, or groups, less favorably than another group based on sex, 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, Title IX of the Education Amendments Act of 1972, or other state and federal civil rights laws, (e.g. exceptions for certain sex-segregated facilities).

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

Sex-Based Harassment
Sex-Based Harassment is a form of discrimination based on sex and occurs when a Respondent engages in the following conduct based on sex:

Quid Pro Quo
A WWU employee, agent, or other person authorized by the University to provide an aid, benefit, or service under the University’s education program or activity explicitly or impliedly conditioning the provision of such an aid, benefit, or service on an individual’s participation in unwelcome sexual conduct.

Hostile Environment
Unwelcome conduct based on sex, 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 in any setting that is part of a work setting, an academic setting, or any other setting that is part of the University’s education programs and activities, defined above as “all of the operations of the University”). 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’ ages, 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 sex-based harassment in the University’s education program or activity.

Sexual Violence
Title IX regulations permit the University to address conduct above and beyond the scope of conduct specifically defined under Title IX. Title IX also provides specific procedures for conduct defined by Title IX. Each definition in this section indicates when the specific procedures under Title IX regulations would apply (as noted by Title IX Definition, or Definition for Both). For definitions noted as University Definition, the University would apply the appropriate procedures as it would for other similar conduct (such as disciplinary procedures under the Student Conduct Code, employee handbooks, or collective bargaining agreements). 

Sexual Assault 

Nonconsensual Sexual Intercourse (University Definition)

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

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

 Rape (Title IX Definition)
(Except 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 (Title IX Definition)
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 (Title IX Definition)
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 (Title IX Definition)
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 (Definition for Both)
Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law in the State of Washington. See also:  RCW 9A.64.020 – Incest, and RCW 26.04.020 – Prohibited marriages.

Statutory Rape (Definition for Both)
Nonforcible sexual intercourse with a person who is under the statutory age of consent under the laws of the State of Washington. See also: RCW 9A.44.073, 9A.44.076, 9A.079 (Rape of a Child 1^st, 2^nd, 3^rd degree); RCW 9A.44.083, 9A.44.086, 9A.44.089 (Child Molestation 1^st, 2^nd, 3^rd degree); RCW 9A.44.093 (Sexual Misconduct with a Minor 1^st degree)

Domestic Violence

1. University Definition: Physical violence; bodily injury; assault; the infliction of fear of imminent physical harm; sexual assault; stalking; or threats, coercion, intimidation, or manipulation related to emotional abuse, financial abuse, or physical harm to a person, property, or pets; or 
2. Title IX Definition: Felony or misdemeanor crimes 

3. Committed by a person who:

   a. Is a current or former spouse or intimate partner of the victim under the family or domestic laws of the State of Washington, or a person similarly situated to a spouse of the victim;
   b. Is cohabitating, or has cohabitated, with the victim as a spouse or intimate partner;
   c. Shares a child in common with the victim; or
   d. Commits acts against a youth or adult victim who is protected from those acts under the family or domestic violence laws of the State of Washington, RCW 26.50.010. 

Dating Violence (Definition for Both)
Physical violence; bodily injury; assault; the infliction of fear of imminent physical harm; sexual assault; stalking; or threats, coercion, intimidation, or manipulation related to emotional abuse financial abuse, or physical harm to a person, property, or pets committed by a person:

i. Who is or has been in a social relationship of a romantic or intimate nature with the victim; and
ii. Where the existence of such a relationship shall be determined based on a consideration of the following factors:

    A. The length of the relationship;
    B. The type of relationship; and
    C. The frequency of interaction between the persons involved in the relationship.                                   

Stalking (Definition for Both)
Engaging in a course of conduct directed at a specific person, based on sex, that would cause a reasonable person to:

• fear for their safety or the safety of others; or 
• suffer substantial emotional distress.

Voyeurism (University Definition)
For the purpose of arousing or gratifying the sexual desire of any person, viewing, photographing, or filming:

• Another person without that person's knowledge and consent while the person being viewed, photographed, or filmed is in a place where they would have a reasonable expectation of privacy; or
• The intimate areas of another person without that person's knowledge and consent and under circumstances where the person has a reasonable expectation of privacy, whether in a public or private place.

Indecent Exposure (University Definition)
Any intentional, open and lewd/obscene exposure of a person’s intimate body parts that would cause affront or alarm to a reasonable person. Breastfeeding is not indecent exposure.

Sexual Exploitation (University Definition)
Taking abusive sexual advantage of another individual. Examples may include but are not limited to:

• Recording an otherwise consensual sexual encounter without the other person’s knowledge or permission.
• Using manipulation, coercion, intimidation, threat, force, or otherwise abusive means to arrange for another individual to engage in sexual activities with a third party. 
• Continuing to engage in sexual intercourse or sexual contact after removing a device for safe-sex protection or contraception (such as a condom) without the other person’s knowledge or permission.

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. 

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.

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.

An employee who fails to report to the Title IX Coordinator or 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.