Executive Policy Manual

EP15 – Policy Prohibiting Discrimination and Harassment

Revision Approved July 26, 2024
Effective August 1, 2024

Policy Prohibiting Discrimination and Harassment

1.0 Purpose

Washington State University (WSU) is committed to creating and maintaining a diverse, inclusive, accessible, and equitable community. WSU recognizes that discrimination and harassment can impact the ability of students, staff, faculty, and community members to participate in, access, or reap the benefits of educational and employment opportunities. In order to maintain an equitable and inclusive community, WSU prohibits specific forms of discrimination and harassment (see Part 15.A: Discrimination and Discriminatory Harassment and Part 15.B: Sex Discrimination and Sex-Based Harassment). WSU provides response options and resources to address concerns of discrimination as described in this policy.

WSU encourages reporting and questions, even anonymous questions, to Compliance and Civil Rights (CCR) under this policy. In addition, WSU recognizes that reporting discrimination may be difficult for a number of reasons and puts the burden on the person experiencing harm. Thus, WSU requires all WSU employees to help create a culture of compliance with this policy (see Section 15.0 regarding employee responsibilities).

Complaints under this policy are to be reviewed on a case-by-case basis to ensure that the University maintains its tradition of intellectual freedom, the trust and respect expected in the University community, and the rights of individuals.

2.0    Non-Discrimination Statement

In matters of admissions, employment, housing or services, and/or in the educational program or activities it operates, WSU does not discriminate or permit discrimination by any member of its community against any individual on the basis of:

• Sex, including:
  • Sex stereotypes
  • Sex characteristics
  • Pregnancy or related conditions
  • Sexual orientation
  • Gender identity/expression
• Race
• Color
• Religion
• Age
• Creed
• National or ethnic origin
• Marital status
• Genetic information
• Status as a protected veteran, an honorably discharged veteran, or member of the military
• Physical, mental, or sensory disability, including the use of a trained service animal
• Immigration or citizenship status, except as authorized by federal or state law, regulation, or government contract

WSU policies comply with federal and state civil rights laws and regulations, including, but not limited to:

• Title IX of the Education Amendments of 1972 (20 USC 1681);
• Title IX implementing regulations (34 CFR 106);
• Title VII of the Civil Rights Act of 1964 (42 USC 2000d et seq) and the Pregnancy Discrimination Act (42 USC 2000e et seq);
• Title I and II of the Americans with Disabilities Act (ADA) of 1990 as amended, the Rehabilitation Act of 1973 (P.L. 93-112) and 45 CFR Part 84;
• Title VI of the Civil Rights Act of 1964 (42 USC 2000d et seq);
• Title IV of the Civil Rights Act of 1964 (42 USC 2000d et seq), RCW Chapter 49.60; and
• Gender Equality in Higher Education (RCW Chapter 28B.110).  

Inquiries about the application of these laws and regulations (including inquiries regarding the application of Title IX and its implementing regulations), as well as reports and complaints of discrimination or harassment, may be made to WSU’s Compliance and Civil Rights (CCR), the Department of Education’s Office of Civil Rights, and/or both. See Table 1 and Table 2 below.

Reports and complaints about conduct that may constitute discrimination (including sex discrimination under Title IX) may be made verbally or in writing to CCR and the University’s Title IX Coordinators or designees at the contact information above.

WSU’s prohibitions on discrimination and harassment are included in this policy in Part 15.A and Part 15.B. Relevant procedural guidelines and disciplinary procedures are available here:

• Policy Prohibiting Discrimination and Harassment (EP15)
• CCR Procedural Guidelines
• WSU Standards of Conduct for Students (WAC 504-26)
• Employee manuals:
  • WSU Faculty Manual
  • Administrative Professional Handbook
  • Civil service code (WAC 357)
  • Collective bargaining agreements
  • Employee Title IX Hearing Process

    Contact HRS for information about the employee Title IX hearing process; telephone 509-335-4521; e-mail hrs@wsu.edu. See also Sections 9.0, 10.0, and 12.0.

WSU provides equal access to the Boy Scouts (Scouting America) and other designated youth groups.

3.0 Applicability

 EP15 applies to all students, faculty, staff, and others that have an association with the University if the incident:

• Occurs under WSU’s education program or activities in the United States.
• Occurs in a building owned or controlled by a student organization that is officially recognized by WSU.
• Involves off-campus conduct that has the effect of, or the potential to:
  • Unreasonably interfere with or limit an individual’s work, academic performance, living environment, personal security, or participation in any activity at WSU; or
  • Materially and substantially interfere with the missions, functions, processes, and/or goals of the WSU community.

    This may include situations where some of the conduct occurs outside the United States.

• Involves conduct which may be addressed under other University policies (or where WSU has disciplinary authority over the respondent).

In addition, the conduct must have been committed while the respondent was a WSU community member (e.g., WSU does not have authority to address conduct that occurred prior to a student’s application to WSU).

Consistent with WAC 504-26-221, the use of alcohol or drugs is not a valid defense to a violation of this policy.

4.0 Speech Protections

WSU recognizes and is committed to the principles of free inquiry and free expression and understands that discussion and debate are fundamental to the University. WSU further recognizes that some hateful or discriminatory speech may be used to communicate ideas, beliefs, or opinions, and therefore may have first amendment protections. With limited exceptions, WSU does not limit or prohibit speech in an employee’s private capacity, unless that private speech impacts WSU’s operations. Employees are advised to be aware of their obligations and responsibility to WSU when acting in their private capacities. See WAC 504-35-030(3).

This policy does not restrict the academic freedom of faculty within their instructional content and method, or in the communication of ideas relating to their subject matter. See the WSU Faculty Manual, Section II.B (Freedom of Expression and Accompanying Responsibilities).

This policy does not restrict the protected speech rights of students. For more information on protected speech rights, visit freespeech.wsu.edu.

Where speech-related conduct does not violate this policy but still impacts the WSU community, WSU may engage in proactive steps to provide support, resources, and alternative or educational programming to address concerns. Conduct which does not violate this policy may still be a violation of another University policy and/or professional code.

5.0 Reporting and Complaint Options

Individuals experiencing discrimination and harassment have multiple reporting and complaint options available. CCR is WSU’s primary intake office for concerns of discrimination and harassment. Information about CCR and other available reporting and complaint options (including confidential options) are included in Sections 5.1, 5.2, 5.3, 5.4, 5.5, and 5.6. Because there are many reporting avenues, individuals are encouraged to consult with CCR to learn about their options.

5.1 Compliance and Civil Rights (CCR)

CCR accepts reports and complaints implicating this policy, provides consultations, and facilitates supportive measures.

• Report: A report is sharing information with CCR for purposes of ensuring CCR can provide information on grievance procedures, resources, and other options to the individual who may be experiencing misconduct and provide consultation as needed.
• Complaint: A complaint initiates a formal grievance process.

Individuals may choose whether to submit a report or a complaint.

Reports or complaints to CCR may be made 24 hours per day, seven days per week. Reports or complaints made after normal business hours may be submitted through the online form, by e-mail, or by leaving a voicemail on the office telephone. Reports and complaints are typically responded to within one business day. CCR accepts anonymous reports and complaints. To make an anonymous report or complaint, utilize the online form, or request an anonymous consultation via phone, email, or in person.

Consultations, including anonymous consultations, are available to anyone who has a concern under this policy. Consultations allow individuals to speak with CCR, share as much or as little information as they feel comfortable sharing, and receive information on options, grievance procedures, and supportive measures.

CCR is not an emergency response unit. For emergencies, telephone 911.

To file a report or complaint, contact CCR (or its Title IX Coordinator, ADA Coordinator, or designee). See Table 3 below.

5.2    Section 1557 Civil Rights Coordinator

Exception: Grievances under this policy (EP15) arising out of WSU health care programs or activities which receive funding from the U.S. Department of Health and Human Services (e.g., a patient alleging a denial of service due to a protected class status), must be filed with the Section 1557 Civil Rights Coordinator, housed in Cougar Health Services. See the Patient Protection and Affordable Care Act (42 USC 18001) and Section 15.1.a. The Section 1557 Civil Rights Coordinator works with CCR and the Title IX Coordinator regarding investigation or informal resolution of the complaint.

The Section 1557 Civil Rights Coordinator may be contacted at:

Cougar Health Services
P.O. Box 642303
Washington State University 
Pullman, WA 99164-2302
Email: CHS.civilrightscoord@wsu.edu

5.3    Law Enforcement

Discriminatory harassment and sexual harassment, including sexual assault, stalking, dating violence, and domestic violence, may be criminal in nature, and if so, it is appropriate to report concerns to law enforcement. Law enforcement processes are separate and distinct from University processes, and individuals may choose to report to one, both, or neither. To obtain contact information for the law enforcement agency near each campus, see CCR Campus Resources.

For emergencies, call 911.

The WSU Police Department at WSU Pullman offers an additional reporting service called “Seek then Speak.” Seek then Speak is a self-guided online tool that offers a way for sexual assault survivors to explore options and get answers to questions they may have regarding sexual assault, crime victim rights, victim advocacy, medical care, and reporting to police, and it allows survivors a confidential way to document and gather critical information about their assault. Seek then Speak is facilitated by End Violence Against Women International. For more information on Seek then Speak, see:

• Information
• Access the tool directly

5.4    Department of Education Office of Civil Rights

The federal Department of Education Office of Civil Rights accepts complaints and inquiries relating to civil rights concerns at universities receiving federal funding, such as WSU. See Table 2 for contact information.

5.5    Additional Federal and State Agencies

There are many federal and state agencies that accept reports and complaints that may implicate this policy. The below list provides links to several agencies that may be helpful for reporting purposes; other agencies may also accept complaints. If individuals have questions on their reporting options, CCR can provide a consultation.

• U.S. Department of Labor
• U.S. Equal Employment Opportunity Commission
• U.S. Department of Justice – Civil Rights Division
• U.S. Department of Justice – Office On Violence Against Women
• U.S. Department of Education – Office for Civil Rights
• Washington State Human Rights Commission
• Washington State Department of Enterprise Services
• Washington State Auditor
• National Institutes of Health
• National Science Foundation
• U.S. Department of Agriculture

5.6    Confidential Resources

5.6.a     Victim Advocates

Victim advocates are trained to support victims of crimes by providing emotional support and help navigating resources and the criminal justice system. In most instances, these care providers can speak to you confidentially about your concerns. For a list of advocacy agencies available by campus, see CCR Advocacy.

5.6.b     Office of the University Ombuds

The WSU Office of the University Ombuds is a designated confidential resource for the WSU community. The University Ombuds:

• Protects the interests, rights, and privileges of students, staff, and faculty at all levels and locations of WSU operations and programs;
• Provides information about WSU policies and procedures; and
• Facilitates the resolution of concerns implicating this policy, in consultation with CCR, when appropriate.

For information, see Office of the University Ombuds.

5.6.c     Medical or Counseling Providers

Medical and counseling providers are a confidential resource for individuals to share concerns of discrimination and harassment. For a list of medical and counseling resources available by campus, see CCR Campus Resources and Student Care Mental Health Resources.

5.6.d     Employee Assistance Program (EAP)

Employees may seek confidential guidance and receive access to counseling and legal resources through the Employee Assistance Program. More information is available from the WSU Employee Assistance Program.

6.0    Confidentiality, Protection of Information, and the Privacy of Parties

When engaging with complainants, respondents, witnesses, or other relevant parties to a matter implicating EP15, CCR typically takes notes and records information for the purposes of maintaining a database of the University’s response to concerns, to track reports for patterns and/or to document relevant evidence.

Information relating to discrimination and harassment may be sensitive in nature and participants may fear retaliation. WSU protects information regarding parties and witnesses under this matter, and CCR only shares information on a need-to-know basis:

• As permitted by FERPA statute or regulations (34 CFR 99),
• As required by law (including, but not limited to, as required for public records disclosures , for mandatory reporting of abuse under state law, or as required by a subpoena),
• As needed to fairly conduct an investigation, hearing, or adjudication process, including as required by 34 CFR 106 for matters involving Title IX allegations,
• As needed to facilitate supportive measures to protect individuals from ongoing harm,
• As needed to respond to protect public safety or respond to imminent threats to the university community, or
• As required by state or federal agencies (e.g., the National Science Foundation (NSF)), WSU, as an awardee institution:
  • Must report sexual harassment findings; or
  • May be required to provide relevant information in response to a Department of Education Office of Civil Rights investigation).

Questions regarding confidentiality or how to report information anonymously may be directed to CCR. Confidential reporting resources are described in Section 5.6.

WSU does not enter into nondisclosure agreements involving sex-based harassment that are prohibited by RCW 49.44.211 and RCW Chapter 28B.112.

7.0    Supportive and Safety Measures Process

Supportive measures are individualized measures offered:

• As appropriate;
• As reasonably available;
• Without unreasonably burdening a complainant or respondent;
• Not for punitive or disciplinary reasons;
• Without fee or charge to the complainant or respondent;
• To restore or preserve a party’s access to a WSU program or activity; and/or
• To provide support during a WSU grievance process.

Supportive measures may include measures designed to protect the safety of the parties or the academic or work environment, or may involve steps to resolve a concern at a lower-level.

Requests for supportive measures or modifications to existing supportive measures can be made to CCR under the process outlined in the CCR Procedural Guidelines. Supportive measures may be assigned by CCR, Student Affairs, or Human Resource Services. Academic, administrative, or service departments may be responsible for implementing supportive measures, in consultation with CCR.

The range of supportive measures includes, but is not limited to: 

7.1    Academic Measures for Students

• Request consideration or flexibility to a faculty member regarding assignments, classroom attendance, deadlines, or other academic needs
• Contacting individual faculty members for specific requests
• Independent study
• Additional tutoring
• Withdrawal, withdrawal without penalty, medical withdrawal
• Incompletes on classes
• Transfer assistance
• Classroom management plans
• Remote attendance/recording classes
• Academic schedule changes
• Access Center/reasonable accommodations
• Enrollment in Global Campus
• Emergency suspension

7.2    Referrals to Care Providers

• Local victim advocacy agencies for access to counseling, crisis lines, support groups, shelters, etc.
• Counseling services – WSU and community referrals, as available.
• Medical providers, in particular hospitals with Sexual Assault Nurse Examiners (SANEs).
• Referrals to off-campus counselors.
• National/state resources to locate additional advocates/care providers, such as:
  • Rape, Abuse and Incest National Network (RAINN)
  • Washington State Coalition Against Domestic Violence (WSCADV)
  • Washington Coalition of Sexual Assault Programs (WCSAP)

7.3    Services for Employees

• Employee Assistance Program (counseling, financial, legal)
• Workplace management/safety plans
• Work schedule adjustments, as needed, to obtain medical or mental health care, legal assistance, and/or confidential secure shelter
• Domestic violence, sexual assault, stalking leave (RCW 49.76.010)
• Change reporting lines in consultation with HRS
• Identify alternate work in consultation with supervisors/HRS
• Work from home options in consultation with supervisors/HRS
• Work schedule changes in consultation with supervisors/HRS
• Work accommodations/reasonable accommodations through HRS Disability Services

7.4    Safety

• Referral to law enforcement
• Police/Security safety assessment of home or campus areas
• Providing information on seeking a Protection Order for:
  • Anti-harassment and stalking
  • Domestic violence
  • Sexual assault

• No-contact directive from the University
• Emergency removal or administrative leave, in consultation with DOS, Center for Community Standards, HRS, and/or CCR.
• Safety planning with a community victim advocate
• Residence hall changes, in consultation with DOS, Housing and Residence Life, and CCR.
• Cadet/police escort, where available
• Local taxi/bus information
• Local domestic violence shelter information
• Blue phones
• Emergency residence life room on campus (Pullman only)

7.5    Miscellaneous

• Emergency funding
• Support for tuition adjustment petitions (considered in appropriate cases)
• Campus involvement (student organizations, Women’s Center, Diversity Centers, etc.)

7.6    Legal Resources

• ASWSU Student Legal Services
• Northwest Justice Project
  • CLEAR Hotline for counties outside King County
  • 211 Legal Referral and Information Hotline (King County)

• Washington Law Help – self-help resources
• Local advocacy agencies – legal advocates
• Moderate Means Program – online application for a referral to an attorney with reduced fees
• Family Law Matters – limited license legal technician
• Washington State Bar Attorney Referral
• Benton-Franklin County Attorney Referral
• Chelan-Douglas County Attorney Referral
• Clark County Attorney Referral
• King County Attorney Referral
• Skagit County Legal Aid
• Snohomish County Attorney Referral
• Spokane County Attorney Referral
• Tacoma-Pierce County Attorney Referral
• Thurston County Attorney Referral
• Yakima County Attorney Referral

Resources generally available to the WSU community, which may include University and community administrative, counseling, medical, advocacy, and safety options, are available and marked as confidential or nonconfidential at CCR Resources.

 8.0   Informal Resolution

An informal resolution is a form of a supportive measure that is facilitated between parties as an alternative to the formal grievance process. It offers complainant(s) and/or respondent(s) a voluntary opportunity to explore an alternative resolution. Informal resolutions may encompass a broad range of conflict resolution strategies including, but not limited to:

• An agreement between parties
• A mediation
• Education and training
• Workplace or academic management plans
• Restrictions on contact or participation in programs or activities
• Supportive measures, including safety measures

A complaint does not need to be submitted to initiate an informal resolution. A complainant or respondent may request an informal resolution at any stage of their engagement with CCR, prior to a final University determination of responsibility.

CCR has discretion to determine when an informal resolution is appropriate. CCR does not offer an informal resolution when such a process would conflict with legal requirements.

Informal resolutions are voluntary and require consent of the party to proceed. If an informal resolution involves another individual or party, that person must also consent to the informal resolution.

Informal resolutions can include agreed upon punitive terms (e.g., a party may agree to a permanent withdrawal or removal of duties). Parties may also accept responsibility or accountability for misconduct.

Parties may withdraw from the informal resolution process at any stage, prior to agreeing to a resolution. If such a withdrawal occurs, it is not considered during the final resolution process.

If a party violates the resolution, or if CCR has a compelling reason to do so, the informal resolution may be voided and CCR may resume a grievance procedure.

The procedure to initiate an informal resolution is described in the CCR Procedural Guidelines.

9.0   Complainant Preferences and CCR Authority to Proceed

CCR considers participant preferences in the University’s response. In most cases, if a complainant does not want to proceed with a formal grievance process and prefers to seek alternative resources and support, CCR supports their decision. However, in limited circumstances, CCR may determine it is appropriate to initiate a formal grievance process in the absence of a complaint. The Title IX Coordinator or designee makes this determination, considering the following factors:

• The complainant’s request to not proceed;
• The complainant’s reasonable safety concerns regarding initiating a complaint;
• The risk that additional misconduct would occur if a complaint is not initiated;
• The severity of the alleged conduct, including whether, if found to have occurred, would require the removal of the respondent from campus or some other sanction to end the discrimination and prevent its recurrence;
• The age and relationship of the parties, including whether the respondent is an employee;
• The scope of the misconduct, including information suggesting a pattern, ongoing misconduct, or misconduct that impacts multiple individuals;
• The availability of evidence to assist a decision-maker in determining whether misconduct occurred; and
• Whether WSU has options to address or end the misconduct and prevent its recurrence without initiating a grievance process.

The Title IX Coordinator or designee may initiate a complaint if they consider these factors and determine that the alleged conduct:

• Presents an imminent and serious threat to the health or safety of the complainant or other person; or
• Prevents equal access to University education programs or activities.

If a complaint is initiated in this manner, CCR notifies the complainant and implements supportive measures designed to address safety concerns.

10.0   Grievance Process Overview

When possible, CCR endeavors to resolve matters at the lowest possible level. If CCR receives information through a report or consultation, and a complaint is not yet filed, CCR may facilitate the following:

• Supportive measures
• Documentation
• Alternative resolutions
• Information resolutions

If CCR receives a complaint, CCR initiates a complaint assessment, as described in the CCR Procedural Guidelines, which may lead to an investigation. The basic description of a grievance process is included below; specific procedures and timeframes are included in the CCR Procedural Guidelines. The informal resolution process described in Section 8.0 remains available to parties until a determination of responsibility is made.

CCR assigns a neutral, unbiased, and conflict-free investigator to assess a complaint and engage in an investigation, as appropriate. CCR provides a reliable and impartial investigation with adequate evidence to support a University decision.

Notice of a formal grievance process is provided in writing to both parties. Respondents have an opportunity to respond to allegations. Parties have an equal opportunity to present fact witnesses and relevant evidence; however, CCR, or designee, has the responsibility to conduct an investigation, not the parties. During an investigation, WSU does not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence.

The investigator and/or decision-maker reviews all evidence to determine what is relevant and what is impermissible. Investigation results are provided to the relevant disciplinary and/or decision-making authority. Appeals are also available. For specific information on these processes, see CCR Procedural Guidelines.

CCR endeavors to complete investigations in a timely fashion. Specific time frames are outlined in the CCR Procedural Guidelines. Extensions may occur on a case-by-case basis for good cause, including reasonable safety concerns or to facilitate supportive measures. When the timelines are extended, CCR provides written notice to the parties.

Participants may have an advisor, who may be a support person or attorney, assist them through their engagement with CCR and any ensuing disciplinary processes, including by attending scheduled interview meetings and hearings. CCR engages directly with the participants and does not provide access to investigative records to advisors, unless the advisor is providing legal services for the participant and has filed waivers where appropriate. If the advisor is an attorney, CCR provides opportunities for a participant to consult with their advisor privately and includes the advisor in process stages where they are legally representing the party. Advisors are not to misuse or disseminate information received throughout the grievance process in a retaliatory fashion.

CCR employees must not participate in an investigation in which they have a conflict of interest or bias. CCR complies with the University Ethics Policy, Executive Policy Manual EP45, and its conflict of interest requirements. CCR staff are not permitted to investigate, facilitate an informal resolution (where available), or review appeals on matters in which they have a personal interest (e.g., financial, familial, professional, or otherwise), that may impair, or reasonably appear to an objective outside observer to impair, the independent, unbiased judgment of that employee in the discharge of their duties. If CCR is unable to manage a conflict internally, the allegation may be referred to WSU Human Resource Services (HRS), an external investigator, or another appropriate office, to supervise the investigation or to conduct an independent investigation, as appropriate.

Additional process rights may also be available depending on the specific concern raised. Please see Part 15.A, Part 15.B, and the CCR Procedural Guidelines for more information. For information on the sanctioning process, see the relevant student or employee manual:

• WSU Faculty Manual,
• Administrative Professional Handbook, 
• WAC 357-40 (civil service employees),
• Applicable collective bargaining agreements,
• WSU Standards of Conduct for Students (WAC 504-26), or
• Employee Title IX Hearing Process (see also Sections 2.0, 9.0, 10.0, and 12.0).

If an investigation includes allegations of Part 15.A and Part 15.B conduct, WSU utilizes the CCR Procedural Guidelines for Part 15.B.

11.0   Good Samaritan Guideline – Students

During a CCR process, when a student voluntarily shares information about the possession or use of alcohol or drugs, CCR does not refer the student to the Center for Community Standards for alcohol- or drug-related conduct proceedings, except if drugs or alcohol were used to gain advantage, incapacitation, or exploitation over another individual.

The Center for Community Standards also uses discretion under WAC 504-26-510, the Good Samaritan Policy, and may refrain from imposing formal discipline for alcohol or drug use and possession under the Standards of Conduct for Students. Information is available through the Center for Community Standards.

See also WAC 504-26-510: Good Samaritan policy.

12.0   Procedural Considerations

If a formal grievance process is initiated, CCR’s investigation and the corresponding hearing process have safeguards to ensure a fair, neutral, and equitable process.

12.1     Presumption of Not Responsible

CCR reviews reports and facilitates a grievance process pursuant to the CCR Procedural Guidelines and such processes are initiated with a presumption that the respondent is not responsible for the alleged conduct.

12.2     Objective Evaluation of All Relevant Evidence

CCR gathers evidence from fact witnesses and documentary sources. CCR and/or the decision-maker objectively consider all relevant evidence that is not otherwise impermissible under Section 12.3 (Evidence Prohibitions). Relevant evidence includes both inculpatory and exculpatory evidence. (Inculpatory evidence is defined as evidence that tends to indicate guilt. Exculpatory evidence is defined as evidence that tends to clear the person from guilt or responsibility.)

CCR and/or the decision-maker assess the evidence for credibility. Factors considered when assessing credibility may include whether:

• The witness had first hand or second hand knowledge of the conduct,
• Witness statements are internally consistent,
• Witness statements are consistent with other witnesses or documentary evidence; and
• Information is plausible.

Credibility determinations are not based on a person’s status as a complainant, respondent, or witness.

12.3     Evidence Prohibitions

CCR and/or the decision-maker consider all relevant fact evidence. Evidence that is character-based or opinion-based is given less weight. Further, the following types of evidence are impermissible and not considered during an investigation:

• Evidence that is protected under a privilege as recognized by federal or state law, unless the person to whom the privilege or confidentiality is owed has voluntarily waived the privilege or confidentiality;
• Evidence provided to a confidential employee, unless the person to whom the privilege or confidentiality is owed has voluntarily waived the privilege or confidentiality;
• A party’s or witness’s records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the party or witness, unless the party provides voluntary, written consent for use of that record;
• Evidence that relates to a complainant’s sexual interests or prior sexual conduct, unless:
  • The evidence is offered to prove that someone other than the respondent committed the alleged conduct; or
  • The evidence is about specific incidents of the complainant’s prior sexual conduct with the respondent that is offered to prove consent to the alleged sex-based harassment;

    The fact of prior consensual sexual conduct between a complainant and respondent does not by itself:

    • Demonstrate or imply the complainant’s consent to the alleged sex-based harassment; or
    • Preclude determination that sex-based harassment occurred.

12.4     Access to Evidence

Parties involved in a formal grievance procedure under this policy are provided with an equal opportunity to access the relevant and not otherwise impermissible evidence. Specific procedures for accessing evidence are outlined in the CCR Procedural Guidelines.

12.5     Standard of Evidence

WSU determines the facts and whether there is a violation of this policy based on a preponderance of evidence. Preponderance means that the totality of the evidence persuades the fact-finder that a fact is more probably true than not true and/or that it is more probable than not that a violation of the policy occurred.

13.0   Barriers to Reporting and Feedback to CCR

WSU is committed to reducing barriers to reporting and ensuring individuals are connected with support and resources. CCR welcomes feedback and suggestions on its processes and response from the University community. To submit feedback or suggestions, see the CCR Feedback form.

Students who would like to be more involved in shaping University response may participate in the annual Student Feedback Committee by contacting CCR; e-mail ccr@wsu.edu.

14.0   Record-Keeping

Records related to reports and complaints of conduct implicating this policy (EP15), including, but not limited to, investigation and hearing records, are maintained by WSU in accordance with state records retention requirements. See Records Retention and Disposition.

15.0   Employee-Related Responsibilities

15.1      Department Responsibilities

All University departments are expected to promote a work and academic environment that is free of discrimination and harassment. This may include department leadership taking steps to:

• Address conduct, in consultation with CCR, HRS, and the WSU Division of the Office of the Attorney General;
• Provide training to employees or students;
• Ensure policies and procedures comply with this policy;
• Coordinate and cooperate with the Lead Title IX Coordinator or CCR regarding compliance, investigations, and resolutions under this policy, including taking appropriate steps to prevent or respond to potential retaliation and interference as prohibited by this policy;
• Ensure staff are adequately trained on this policy (see Section 15.2 for employee training requirements);
• Engage in preventative activities and create a culture of compliance with this policy;
• Participate in investigations or other resolution processes under this policy, as appropriate;
• Maintain records as required by the state and University retention policies (see Section 14.0);
• Execute resolutions or sanctioning, if appropriate; and
• Not engage in conduct prohibited under this policy.

15.1.a   WSU Health Care Programs or Activities

WSU health care programs or activities must post a Notice of Nondiscrimination and Accessibility (Notice) within each health care program/activity (e.g., Cougar Health Services), as required by Section 1557 of the Patient Protection and Affordable Care Act (ACA). This notice formally designates the Section 1557 Civil Rights Coordinator to receive grievances and the procedure for submitting a grievance. The Section 1557 Civil Rights Coordinator is also responsible for coordinating WSU’s compliance with Section 1557 of the ACA. (See also Section 5.2.)

15.2     Employee Responsibilities

Employees are also expected to contribute to a culture of compliance with this policy and have specific training, reporting, and disclosure requirements, which may depend on whether they have been designated a confidential or non-confidential employee under this policy. The following employees are considered confidential for purposes of this policy:

• Medical professionals:
  • Employees who are statutorily barred from reporting (e.g., health care providers and mental health care providers acting in their capacities as health care and mental health care providers);
  • Employees, interns, professional trainees, volunteers, contractors, and other similar individuals who have received information while:
    • Providing services within their professional capacity at WSU’s Cougar Health Services, Athletic Medicine, or WSU Psychology Clinic; or
    • Otherwise designated by WSU to provide medical or mental health services;

• Office of the University Ombuds:
  • Employees who have received information while providing services within their professional capacity at WSU’s Office of the University Ombuds.

• Violence Prevention Program Facilitators:
  • Employees participating in preventative education for students regarding sex and gender-based violence or a related program, during which a student or employee discloses having experienced sex-based harassment (including, but not limited to quid pro quo harassment, sexual assault, intimate partner violence, or stalking). Confidential status is only with respect to information received while facilitating a violence prevention program.

• Peer Health Educators:
  • Student employees in WSU Health Education who learn of information while:
    • Facilitating workshops;
    • Representing health education at campus events or elsewhere or
    • Collaborating with campus partners or students.

• Some researchers:
  • Employees conducting an Institutional Review Board-approved human-subjects research study designed to gather information about discrimination and harassment. Confidential status is only with respect to the information received while conducting the study.

Employees have the following responsibilities:

• Reporting requirements:
  • All non-confidential WSU employees (including student employees) who have information regarding sex-based harassment or sex discrimination must report that information to Compliance and Civil Rights (CCR).
  • All non-confidential supervisory WSU employees (including student employees) who have information regarding discrimination or discriminatory harassment must report that information to CCR.
  • Employees designated as Campus Security Authorities are required to report Clery Act identified crimes to the appropriate Clery administrator. (See BPPM 50.70.)
  • State mandatory reporting:
    • Under state law (RCW 26.44.030(1)(f)), all administrative, academic, and athletic department employees, including student employees, are required to report suspected child abuse or neglect to law enforcement or to the Washington Department of Children, Youth, and Families.
    • All other higher education employees are required to report suspected child abuse or neglect to their supervisor within 48 hours and are advised to report these incidents to law enforcement (RCW 28B.10.846).
    • WSU students participating in certain internships, clinical rotations, and other training programs, and faculty, staff, and licensed health care providers overseeing such programs, also may have mandatory reporting requirements with respect to abuse and neglect of children and vulnerable adults, in accordance with RCW 26.44.030 and RCW 74.34.035.
    • Under state law (RCW 28B.10.907(2)), any employee, student employee, or volunteer who has reasonable cause to believe that hazing has occurred must report the incident, or cause a report to be made, to CCS. Reports that may implicate this policy may also be made to CCR.

• Training requirements:
  • All WSU employees and student employees are required to take an annual Discrimination and Harassment Prevention Training, which includes requirements under Title IX.

• Disclosure requirements:
  • Confidential employees must share the following information with any person who informs them of sex discrimination or sex-based harassment:
    • The employee’s status as a confidential employee and that the employee is not required to report the conduct to CCR.
    • How to contact CCR and how to make a complaint of sex discrimination or sex-based harassment.
    • That CCR may be able to offer and coordinate supportive measures, as well as initiate an informal resolution process or an investigation under EP15.
  • All employees are required to share specific information with a student when the student informs the employee of their pregnancy or related conditions. The specific information is available online for employees to distribute (see Resources for Students), and includes information on:
    • The Title IX Coordinator’s responsibility to prevent sex discrimination and ensure equal access;
    • The right to request reasonable modifications; and
  • How to seek reasonable modifications, supportive measures, and participate in grievance processes.

    Pregnancy or related conditions include:

    • Pregnancy, childbirth, termination of pregnancy, or lactation
    • Medical conditions related to pregnancy, childbirth, termination of pregnancy, or lactation, or
    • Recovery from pregnancy, childbirth, termination of pregnancy, lactation, or related medical conditions.

Part 15.A   Discrimination and Discriminatory Harassment

16.0   Purpose

WSU prohibits specific misconduct (see Section 17.0) based on any of the following, except as authorized by federal or state law, regulation, or government practice:

• Race;
• Age;
• Color;
• Religion;
• Age;
• Creed;
• National or ethnic origin;
• Marital status;
• Genetic information;
• Status as a protected veteran, an honorably discharged veteran, or member of the military;
• Physical, mental, or sensory disability (including the use of a trained service animal); and
• Immigration or citizenship status.

Note: Prohibitions for misconduct on the basis of sex are included in Part 15.B.

Discriminatory conduct includes a wide spectrum of behaviors. Conduct meeting the violation standards listed below may be subject to investigative and disciplinary procedures. In determining if conduct is in violation of Part 15.A, the totality of the circumstances are assessed including, but not limited to, the following factors:

• Severity
• Frequency
• Status of the complainant and respondent and their relationship to each other
• Physicality, threats, or endangerment; and
• Whether or not the conduct can be reasonably considered protected speech or serving some other lawful purpose.

17.0   Violation of Policy

The following types of conduct are prohibited and subject to the investigative, adjudicative, and disciplinary procedures outlined in this policy.

17.1     Disparate Treatment

Knowingly or intentionally treating an individual or individuals differently on the basis of a protected class not for a legitimate lawful purpose, which results in the individual or individuals being treated less favorably than similarly situated individuals of a different protected class.

17.2     Disparate Impact

A facially neutral policy or practice that results in an individual or individuals in a protected class being impacted differently and less favorably than similarly situated individuals who are not in that protected class. This does not include conduct which has a legitimate lawful purpose.

17.3     Discriminatory Harassment

Unwelcome, intentional conduct, on the basis of membership in a protected class, other than sex, which is so severe or pervasive, and objectively offensive, that it substantially and unreasonably:

• Interferes with, or has the potential to interfere with, an individual’s ability to participate in WSU employment, education, programs, or activities;
• Adversely alters the condition of an individual’s WSU employment, education, or participation status;
• Creates an objectively abusive employment, program, or educational environment; or
• Results in a material or substantial disruption of WSU’s operations or the rights of students, staff, faculty, visitors, or program participants.

Discriminatory harassment can include conduct more commonly referred to as hate crimes.

17.4     Retaliation

Intimidation, threats, coercion, or discrimination against any individual for the purpose of interfering with any right or privilege secured by this policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this policy. Retaliation complaints utilize the same procedural steps as the original concern from which the retaliation stemmed.

First amendment activities do not constitute retaliation.

17.5     Interference

Actions that intentionally:

• Dissuade or attempt to dissuade reporting parties, responding parties, or witnesses from reporting or participating in an investigation;
• Attempt to influence a complainant, respondent, or witness to make an inaccurate statement in the investigation;
• Delay or disrupt, or attempt to delay or disrupt, any University processes related to this policy; and/or
• Alter or attempt to alter the evidence provided to or received by investigative or disciplinary processes.

17.6     False Statements

Making a materially false statement in bad faith during any proceeding or process under this policy.

No complaint is considered false solely because it cannot be corroborated. Further, WSU does not discipline parties, witnesses, or others participating in a grievance process for making a false statement solely on a determination that discrimination occurred.

17.7     Violation of Discrimination Law

Any action that would be a violation of any state of Washington or federal discrimination law is also a violation of this policy.

Part 15.B   Sex Discrimination and Sex-Based Harassment

18.0   Purpose

WSU prohibits specific misconduct (see Section 20.0) based on sex (including sex stereotypes, sex characteristics, pregnancy or related conditions), sexual orientation, and gender identity.

Sex-based discrimination and sex-based harassment includes a wide spectrum of behaviors. Conduct meeting the violation standards listed below may be subject to investigative and disciplinary procedures. In determining if conduct is in violation of Part 15.B, the totality of the circumstances are assessed including, but not limited to, the following factors:

• Severity
• Frequency
• Status of the complainant and respondent and their relationship to each other
• Physicality, threats, or endangerment; and
• Whether or not the conduct can be reasonably considered protected speech or serving some other lawful purpose.

19.0   Definition of Consent

For purposes of Part 15.B, consent to any sexual activity must be clear, knowing, and voluntary. Anything less is equivalent to a “no.” Clear, knowing, and voluntary consent to sexual activity requires that, at the time of the act, and throughout the sexual contact, all parties actively express words or conduct that a reasonable person would conclude demonstrates clear permission regarding willingness to engage in sexual activity and the conditions of such activity. Consent is active; silence or passivity is not consent. Even if words or conduct alone seem to imply consent, sexual activity is nonconsensual when:

• Force or coercion is threatened or used to procure compliance with the sexual activity.
  • Force is the use of physical violence, physical force, threat, or intimidation to overcome resistance or gain consent to sexual activity.
  • Coercion is unreasonable pressure for sexual activity. When an individual makes it clear through words or actions that the individual does not want to engage in sexual contact, wants to stop, or does not want to go past a certain point of sexual interaction, continued pressure beyond that point may be coercive. Other examples of coercion may include using blackmail or extortion to overcome resistance or gain consent to sexual activity.
• The person is asleep, unconscious, or physically unable to communicate their unwillingness to engage in sexual activity; or
• A reasonable person would or should know that the other person lacks the mental capacity at the time of the sexual activity to be able to understand the nature or consequences of the act, whether that incapacity is produced by illness, defect, the influence of alcohol or another substance, or some other cause.

  When alcohol or drugs are involved, a person is considered incapacitated or unable to give valid consent if the individual cannot fully understand the details of the sexual interaction (i.e., who, what, when, where, why, and how), and/or the individual lacks the capacity to reasonably understand the situation and to make rational, reasonable decisions.

The use of alcohol or other drugs is not a valid defense to a violation of this policy.

20.0   Violation of Policy

The following types of conduct are prohibited and subject to the investigative, adjudicative, and disciplinary procedures outlined in this policy.

20.1     Disparate Treatment

Knowingly or intentionally treating an individual or individuals differently on the basis of sex, not for a legitimate lawful purpose, which results in the individual or individuals being treated less favorably than similarly situated individuals of a different protected class.

20.2     Disparate Impact

A facially neutral policy or practice that results in an individual or individuals being impacted differently and less favorably based on sex than similarly situated individuals. This does not include conduct that has a legitimate lawful purpose.

20.3     Hostile Environment Harassment

A form of sex-based harassment involving unwelcome sex-based conduct that, based on 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 WSU’s education programs or activities (i.e., creates a hostile environment), or enduring the offensive conduct becomes a condition of continued employment. Whether a hostile environment has been created is a fact-specific inquiry that includes consideration of the following:

• The degree to which the conduct affected the complainant’s ability to access the recipient’s education program or activity; 
• The type, frequency, and duration of the conduct; 
• The parties’ ages, roles within the recipient’s education program or activity, previous interactions, and other factors about each party that may be relevant to evaluating the effects of the conduct; 
• The location of the conduct and the context in which the conduct occurred; and 
• Other sex-based harassment in the recipient’s education program or activity.

Hostile environment harassment includes a wide range of behaviors, including, but not limited to:

• Sexual exploitation
• Causing or attempting to cause the incapacitation of another person to gain sexual advantage over that person;
• Invading another person’s sexual privacy;
• Prostituting another person;
• Engaging in voyeurism;
• Knowingly or recklessly exposing another person to a significant risk of sexual transmitted disease or infection;
• Exposing one’s intimate parts in nonconsensual circumstances; or
• Sexually-based stalking and/or bullying.

20.4     Quid Pro Quo Harassment

A form of sex-based harassment in which an employee, agent, or other person authorized by WSU to provide an aid, benefit, or service under WSU’s education programs or activities explicitly or impliedly conditioning the provision of an aid, benefit, or service on a person’s participation in unwelcome sexual conduct.

20.5     Sexual Assault

A form of sex-based harassment involving forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation. Note: If the following sexual assault definitions are updated in the NIBRS User Manual (available online at FBI UCR Technical Specifications), the updated definitions are applied.

• Sex Offense: Any sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent.
• Rape (except Statutory Rape): Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, or by a sex-related object, 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.

20.6     Dating Violence

A form of sex-based harassment involving violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship is to be determined based on:

• Length of the relationship,
• Type of relationship, and
• Frequency of interaction between the persons involved in the relationship.

20.7     Domestic Violence

A form of sex-based harassment involving felony or misdemeanor crime of violence committed:

• By a current or former spouse or intimate partner of the victim or a person similarly situated to a spouse of the victim;
• By a person with whom the victim shares a child in common;
• By a person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner;
• By a person similarly situated to a spouse of the victim under the domestic or family violence laws of Washington, or
• By any other person against an adult or youth victim who is protected from that person’s act under the domestic or family violence laws of Washington.

20.8     Stalking

A form of sex-based harassment in which an individual engages in a course of conduct directed at a specific person that would cause a reasonable person to:

• Fear for the person’s safety or the safety of others; or
• Suffer substantial emotional distress.

For the purposes of this definition:

• Course of conduct means two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property.
• Reasonable person means a reasonable person under similar circumstances and with similar identities to the victim.
• Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.

20.9     Retaliation

Intimidation, threats, coercion, or discrimination against any individual for the purpose of interfering with any right or privileged secured by this policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this policy. Retaliation complaints utilize the same procedural steps as the original concern from which the retaliation stemmed.

First amendment activities do not constitute retaliation. 

20.10    Interference

Actions that intentionally:

• Dissuade or attempt to dissuade reporting parties, responding parties, or witnesses from reporting or participating in an investigation;
• Attempt to influence a complainant, respondent, or witness to make an inaccurate statement in the investigation;
• Delay or disrupt, or attempt to delay or disrupt, any University processes related to this policy; and/or
• Alter or attempt to alter the evidence provided to or received by investigative or disciplinary processes.

20.11    False Statements

Making a materially false statement in bad faith during any proceeding or process under this policy.

No complaint is considered false solely because it cannot be corroborated. Further, WSU does not discipline parties, witnesses, or others participating in a grievance process for making a false statement solely on a determination that discrimination occurred.

20.12    Violation of Sex Discrimination Law

Any action that would be a violation of any state of Washington or federal sex discrimination law is also a violation of this policy.

_______________________
Revisions:  July 2024 (Rev. 120); May 2023 (Rev. 111); Sept. 2021 (Rev. 100); Aug. 2020 (Rev. 94); Apr. 2020 (Rev. 90); Jan. 2015 (Rev. 57); Jan. 2014 (Rev. 54); Feb. 2010 (Rev. 39); June 2007 (Rev. 26); Mar. 2002 – new policy (Rev. 10)