Title IX

Title IX

A. Purpose

The Evergreen State College (Evergreen) is committed to maintaining and strengthening an educational and employment environment founded on civility and mutual respect without regard to a person’s sex, sexual orientation, gender identity or gender expression. While Evergreen’s goal is to prevent discrimination on the basis of sex through education and development of a sense of community, Evergreen acknowledges that these prohibited behaviors can occur.

Evergreen recognizes its responsibility to investigate, resolve, implement supportive and constructive measures, and monitor the educational environment and workplace to promptly and effectively stop, remediate, and prevent discrimination on the basis of sex, as required by Title IX of the Educational Amendments of 1972, Title VII of the Civil Rights Act of 1964, the Violence Against Women Reauthorization Act, and Washington State’s Law Against Discrimination, and their implementing regulations. To this end, Evergreen has enacted this Title IX Policy and Procedure for the purposes of receiving and investigating allegations of sex discrimination arising within Evergreen’s educational programs and activities and workplace. Any individual found responsible for engaging in sex discrimination in violation of Evergreen policy may be subject to disciplinary action up to and including dismissal from Evergreen’s educational programs and activities and/or termination of employment.

Application of this Title IX Policy and Procedure is restricted to allegations of sex discrimination, which includes, but is not limited to, allegations of sex-based harassment, as those terms are defined within this policy. Nothing in this policy limits or otherwise restricts Evergreen’s ability to investigate alleged misconduct and pursue disciplinary action based on violations of other federal, state, and local laws, their implementing regulations, and other Evergreen policies prohibiting gender discrimination through processes set forth in Evergreen’s Student Code of Rights and Responsibilities, the Non-Discrimination Policy, employment contracts, employee handbooks, and Collective Bargaining Agreements.

B. Definitions

For purposes of this policy, the following definitions apply:

1. Complaint means a written or oral request that can be objectively understood as a request for Evergreen to investigate and make a determination about alleged sex discrimination.
2. Complainant means the following individuals who have been subjected to alleged conduct that would constitute sex discrimination:
   1. A student or employee; or
   2. A person other than a student or employee who was participating in or attempting to participate in Evergreen’s educational program or activity at the time of the alleged discrimination.
3. Confidential Employee means an Evergreen employee whose communications are privileged and confidential under Federal or State law. An employee’s status as a Confidential Employee only applies when they are functioning within the scope of duties to which the privilege or confidentiality applies.
4. Consent means knowing, voluntary, and clear permission by word or action, 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.
   
   A person cannot consent if they are unable to understand what is happening or they are disoriented, helpless, asleep, or unconscious for any reason, including due to alcohol or other drugs. An individual who engages in sexual activity when they know, or reasonably should know, that the other person is physically or mentally incapacitated has engaged in nonconsensual sexual conduct. Intoxication is not a defense against allegations that an individual has engaged in nonconsensual sexual conduct.
   
   Consent cannot be obtained by force or coercion. Force is the use of physical violence and/or imposing on someone physically to gain sexual access. Force also includes threats or intimidation (words or actions that cause an individual to submit to or comply with sexual contact or intercourse due to fear for their safety and/or implied threats) that overcomes free will or resistance. Coercion is unreasonable pressure for sexual contact or sexual intercourse. When someone makes clear to another person by word or action that they do not want to engage in sexual contact or intercourse, that they want to stop, or that they do not want to go past a certain point of sexual contact or intercourse, continued pressure beyond that point is coercive.
5. Disciplinary Sanction means consequences imposed on a Respondent following a determination that the Respondent violated Evergreen’s policy prohibiting sex discrimination.
6. Investigation Procedure is the process Evergreen uses to initiate, informally resolve, and/or investigate allegations that an individual has violated Evergreen policies prohibiting sex discrimination or sex-based harassment.
7. Peer Retaliation means retaliation by a student against another student, or an employee against another employee.
8. Pregnancy or Related Conditions means: 
   1. Pregnancy, childbirth, termination of pregnancy, or lactation;
   2. Medical conditions related to pregnancy, childbirth, termination of pregnancy, or lactation; or
   3. Recovery from pregnancy, childbirth, termination of pregnancy, lactation, or related medical conditions.
9. Educational Program or Activity means all operations of Evergreen.
10. Relevant means related to the allegations of Sex Discrimination under investigation. Questions are relevant when they seek evidence that may aid in showing whether the alleged sex discrimination occurred, and evidence is relevant when it may aid a Decision Maker in determining whether the alleged sex discrimination occurred.
11. Remedies means measures provided to a Complainant or other person whose equal access to Evergreen’s education program or activity has been limited or denied by sex discrimination. These measures are intended to restore or preserve that person’s access to educational programs and activities after a determination if sex discrimination has occurred.
12. Respondent means an individual who has been alleged to have violated Evergreen’s Title IX Policy and Procedure’s and/or WAC 174-123-270 prohibited conduct.
13. Interim Suspension means an emergency suspension of a student Respondent pending investigation and resolution of disciplinary proceedings pursuant to the procedure and standards set forth in WAC 174-123-200.
14. Student means any applicant who becomes enrolled, when an applicant commits violations of the Code as part of the application process or commits violations following their submittal of the application through official enrollment; any applicant accepted for admission or readmission to the college; any person currently enrolled at Evergreen; any person enrolled at the college in a prior quarter or summer session, and eligible to continue enrollment in the quarter or summer session that immediately follows; or any person not employed by the college on a permanent basis who resides in college housing.
15. Student Employee means an individual who is both a student and an employee of the college. When a Complainant or Respondent is a student employee, Evergreen will make a fact-specific inquiry to determine whether the individual’s primary relationship with the college is to receive an education and whether any alleged Code of Student Rights and Responsibilities violations, including but not limited to sex discrimination or sex-based harassment, occurred while the individual was performing employment-related work.
16. Student Group is a student organization, athletic team, or living group including but not limited to, student clubs and organizations, members of a class or student cohort, student performance groups, and student living groups.
17. Supportive Measures means reasonably available, individualized and appropriate, non-punitive and non-disciplinary measures offered by Evergreen’s Title IX Coordinator to the Complainant and Respondent without unreasonably burdening either party, and without fee or charge, for purposes of:
    1. Restoring or preserving the party’s access to Evergreen educational programs or activities, including measures that are designed to protect the safety of the parties or Evergreen’s educational environment; or
    2. Providing support during Evergreen’s investigation and disciplinary procedures, or during any informal resolution process.
18. Title IX Personnel are the Title IX Coordinator and designees; Investigators; Decision Makers and Hearing Panel Members at both the hearing and appeal level responsible for administering Evergreen’s Title IX Policy and Procedure; facilitators of the informal resolution process; and any other employees who are responsible for implementing Evergreen’s Title IX Policy and Procedures for students and employees or have the authority to modify or terminate supportive measures.
19. Title IX Coordinator is responsible for processing Title IX complaints and conducting and/or overseeing investigations and informal resolution processes under this Title IX Policy and Procedure, providing supportive measures and remedies if applicable.

C. Definitions - Prohibited Conduct

Evergreen may impose disciplinary sanctions up to and including dismissal from Evergreen against an employee or student or student groups who has been found responsible for committing, attempting to commit, aiding, abetting, inciting, encouraging, or assisting another person to commit or engage in acts of sex discrimination, including sex-based harassment.

1. Sex Discrimination which includes sex-based harassment, occurs when a Respondent causes more than de minimis (insignificant) harm to an individual by treating them differently from an otherwise similarly-situated individual based on:
   1. Sex stereotypes;
   2. Sex characteristics;
   3. Pregnancy or related conditions;
   4. Sexual orientation; or
   5. Gender identity
2. Conduct that prevents a person from participating in an education program or activity consistent with the person’s gender identity constitutes more than de minimis harm and is prohibited.
2. Sex-based Harassment. For purposes of this policy, sex-based harassment is a type of sex discrimination that occurs when a Respondent engages in the following discriminatory conduct on the basis of sex:
   1. Quid Pro Quo Harassment. An employee, agent, or other person authorized by Evergreen to provide an aid, benefit, or service under Evergreen’s educational program or activity explicitly or impliedly conditioning the provision of such an aid, benefit, or service on a person’s participation in unwelcome sexual conduct.
   2. Hostile Environment. 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 Evergreen’s educational program or activities (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 ability to access Evergreen’s educational program or activity;
      2. The type, frequency, and duration of the conduct;
      3. The parties’ ages, roles within Evergreen’s educational 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 Evergreen’s educational program or activity.
3. Sexual Violence. Sexual Violence includes the following conduct:
   1. Nonconsensual sexual intercourse. 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.
   2. Nonconsensual sexual contact/fondling. 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 breast, groin, mouth, or other bodily orifice of another individual, or any other bodily contact in a sexual manner.
   3. Incest. Sexual intercourse or sexual contact with a person known to be related to them, either legitimate or illegitimately, as an ancestor, descendant, brother, or sister of either wholly or half related. Descendant includes stepchildren and adopted children under the age of eighteen (18).
   4. Statutory rape. Non-forceable sexual intercourse with a person who is under the statutory age of consent.
   5. Domestic Violence. Physical violence, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, coercive control, damage or destruction of personal property, stalking, or any other conduct prohibited under RCW 10.99.020, committed by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the State of Washington, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the State of Washington, RCW 26.50.010.
   6. Dating Violence. Physical violence, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, or stalking 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:
      1. The length of the relationship;
      2. The type of relationship; and
      3. The frequency of interaction between the persons involved in the relationship.
   7. Stalking. Engaging in a course of conduct directed at a specific person that would cause a reasonable person to (i) fear for their safety or the safety of others; or (ii) suffer substantial emotional distress.
4. Retaliation. Means intimidation, threats, coercion, or discrimination against any person by Evergreen, a student, or an employee or other person authorized by Evergreen to provide aid, benefit, or service under Evergreen’s educational program or activity, for the purpose of interfering with any right or privilege secured by Evergreen policies and procedures prohibiting sex discrimination, 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 part, including in an informal resolution process or this Title IX Policy and Procedure. Nothing in this definition prevents Evergreen from requiring an employee to provide aid, benefit, or service under Evergreen’s educational program or activities to participate as a witness in, or otherwise assist with, an investigation, proceeding or hearing.

D. Training Requirements

All Employees

All employees shall undergo training on the following topics upon hire and annually:

1. The definition and scope of sex discrimination and sex-based harassment under these procedures;
2. Evergreen’s obligation to address sex discrimination in its educational program and activities;
3. Employee responsibility, upon learning of a student’s pregnancy or related condition, to provide the student with the Title IX Coordinator’s contact information and information about available assistance;
4. Employee obligations as a Responsible Employee to notify the Title IX Coordinator about conduct that may reasonably be sex discrimination.

Title IX Personnel

In addition to the required training for all employees, Title IX Personnel shall undergo training on the following topics:

1. Evergreen’s grievance procedures for sex discrimination and sex-based harassment involving a student;
2. How to conduct an investigation;
3. How to serve impartially without prejudgment of facts, conflicts of interest, or bias;
4. Use of technology during an investigation or hearing;
5. The definition of Relevance as used for purposes of evaluating evidence and questions for purposes of this investigative procedure; 
6. Effective report writing; and
7. Informal resolution procedures for informal resolution.

Title IX Coordinator and Designees

In addition to the required training for all employees and for Title IX Personnel, the Title IX Coordinator and any designees shall undergo training on the following topics:

1. How to ensure Evergreen’s compliance with its Title IX obligations;
2. How to offer and coordinate supportive measures;
3. pecific actions to prevent discrimination and ensure equal access upon learning of a student’s pregnancy or related conditions;
4. Evergreen’s recordkeeping system and requirements.
5. All sex discrimination training materials will be made available for review upon request by contacting the Title IX Coordinator at titleixcoordinator@evergreen.edu. 

E. Responsible Employees

Under this policy, Evergreen designates all employees (with the exception of confidential employees, defined above), and student Resident Assistants as Responsible Employees.

All Responsible Employees have an obligation to immediately report any knowledge of alleged sex-based harassment, as defined in this policy, or retaliation to the Title IX Coordinator immediately, and expected within 48 hours of being aware of the information.

Responsible Employees are obligated to provide the Title IX Coordinator’s contact information to any student who discloses their pregnancy or parenting status.

Reports should include all details known to a Responsible Employee regarding behaviors that may constitute a violation of this policy. Information to report includes, but is not limited to, the identities of parties, the knowledge of events, and any specific location/date/time.

Failure to report within the expected timeframe shall be deemed a violation of this policy.

Report any information through the Title IX Coordinator at titleixcoordinator@evergreen.edu, via the online form at www.evergreen.edu/student-life/health-wellness/title-ix, or in person at Evans Hall 3009.

Designees for the Title IX Coordinator include:

• Associate Director for Student Rights and Responsibilities,
  studentconduct@evergreen.edu or in person at Evans Hall 3009
• Equal Opportunity and Affirmative Action Officer at equalopportunity@evergreen.edu.

If there is an immediate threat of safety, contact Police at Evergreen or 9-1-1. Campus Police can be reached by telephone at (360) 867-6832.

F. Filing a Complaint

Any employee, student, applicant or visitor who believes that they have been the subject of sex discrimination in violation of Evergreen’s policies, should report the incident or incidents to Evergreen’s Title IX Coordinator identified below. The complaint can be in writing or oral. Complaints may also be made to Student Rights and Responsibilities Office and the Equal Opportunity and Affirmative Action Office. If the complaint is against the Title IX Coordinator, the Complainant should report the matter to the President’s office for referral to an alternate designee.

Title IX Coordinator: Connie Brangard
Office: Evans Hall 3009
Email: titleixcoordinator@evergreen.edu 
Telephone: (360) 867-5224

G. Title IX Coordinator Process Duties

During an investigation and disciplinary procedure, the Title IX Coordinator or a designee is responsible for the following:

1. Accepting, evaluating, and processing all sex discrimination and sex-based harassment complaints, reports or referrals.
2. Conducting an intake meeting with the Complainant and at that time, notifying the Complainant, or the individual who reported the conduct if the Complainant is unknown, of Evergreen’s Title IX Policy and Procedure, and their options for disciplinary procedures including the informal resolution process if appropriate and available. After providing this information, the Title IX Coordinator will ascertain whether the Complainant would like Evergreen to proceed with an investigation of the sex discrimination complaint.
3. Initiating a complaint subject to the procedure and factors set forth in Section I of this policy.
4. When a party is a student employee and the allegations involve sex-based harassment, making a fact-specific inquiry into whether the party’s primary relationship with Evergreen is to receive an education and whether alleged sex-based harassment occurred while the party was performing employment-related work and, based on this inquiry, determine whether the party should be treated as a student or an employee under this investigation procedure and related procedures.
5. Addressing and resolving, if possible, questions regarding confidentiality raised by parties and witnesses.
6. Determining whether a complaint should be dismissed during the investigation phase, and if so, notifying the Complainant or the parties, if the Respondent has been notified of the complaint, of the reasons for the dismissal, and providing the Complainant or parties with information about the procedure for filing an appeal of the dismissal.
7. Maintaining accurate records of all complaints, reports, and referrals.
8. Retaining investigation files, complaints, reports, and referrals in compliance with applicable records retention periods or federal or state law, whichever is longer.
9. Assigning the investigation of a complaint to an impartial investigator and overseeing the investigation.
10. Engaging in an interactive process with both parties to identify and provide supportive measures that ensure during the investigation and disciplinary processes that the parties have equitable access to educational programs and activities and are protected from further discrimination or retaliation, and making revisions to supportive measures as circumstances may require.
11. Upon completion of an investigation, overseeing the issuance of a final investigation report to the parties and the appropriate Decision Maker in compliance with this policy.
12. Recommending non-disciplinary corrective measures to stop, remediate, and/or prevent recurrence of discriminatory conduct to Decision Makers and personnel.
13. Ensuring both the Respondent and the Complainant in cases involving allegations of sex discrimination are provided the same procedural rights to participate in the Title IX process.

Title IX Coordinator Initiated Complaint

1. In the absence or withdrawal of any or all allegations in a complaint, the Title IX Coordinator may file a complaint based on their evaluation of the following factors:
   1. A Complainant’s request not to proceed with initiation of a complaint;
   2. A Complainant’s reasonable safety concerns regarding initiation of a complaint;
   3. The risk additional acts of sex discrimination would occur if the complaint were not initiated;
   4. The severity of the alleged sex discrimination, including whether the discrimination if established, would require the removal of the Respondent from campus or imposition of other disciplinary sanction(s) to end the discrimination and prevent its recurrence;
   5. The age and relationship of the parties, including whether the Respondent is an Evergreen employee;
   6. The scope of the alleged sex discrimination, including information suggesting a pattern, on-going sex discrimination, or sex discrimination alleged to have impacted multiple individuals;
   7. The availability of evidence to assist a Decision Maker with determining whether sex discrimination occurred;
   8. Whether Evergreen could end the alleged sex discrimination and prevent its recurrence without initiating an investigation and disciplinary procedures.
2. If, upon evaluating these and any other relevant factors, the Title IX Coordinator determines that the alleged conduct poses an imminent threat to the health or safety of the Complainant or to other member of the Evergreen community or that the alleged conduct prevents Evergreen from ensuring equal access on the basis of sex to its educational programs and activities, then the Title IX Coordinator may initiate a complaint.
3. When initiating a complaint, the Title IX Coordinator will provide the Complainant with advance notice of this decision and an opportunity to appropriately address reasonable concerns about the Complainant’s safety or the safety of others, including the provision of supportive measures.
4. Regardless of whether a complaint is initiated under this section, the Title IX Coordinator must take other prompt and effective steps, in addition to those steps necessary to implement remedies for the individual Complainant, to ensure that sex discrimination does not continue or recur within Evergreen’s educational programs and activities.
5. The analysis set forth above need not be performed if the Title IX Coordinator reasonably determines that the alleged conduct could not constitute sex discrimination.

Investigation Procedures 

A. Principles of Investigation Applicable to Sex Discrimination Complaints

Evergreen shall provide an adequate, reliable, and impartial investigation of complaints of sex discrimination by:

1. Treating Complainants and Respondents equitably.
2. Presuming that the Respondent is not responsible for the alleged misconduct unless or until a determination of responsibility is reached after completion of the investigation and disciplinary processes.
3. Having the investigation conducted by a neutral and unbiased Investigator without a conflict of interest or bias for or against Complainants and Respondents generally, or an individual Complainant or Respondent.
4. Having the Investigator complete a fact-finding investigation and make findings of fact based on the preponderance of the evidence standard. A preponderance of the evidence means on a more probable than not basis.
5. Place the burden on Evergreen, not the parties, to conduct an investigation that gathers sufficient evidence to determine whether sex discrimination occurred.
6. Obtain consent to have each party’s interview(s) recorded for the purposes of follow-up questions by parties.
7. Objectively evaluating all evidence that is relevant and not otherwise impermissible under Section L (e) and (f) of this procedure – including both inculpatory and exculpatory evidence – and provide credibility determinations that are not based solely on a person’s status as a Complainant, Respondent or witness.
8. Providing an equal opportunity for parties to present fact witnesses and other inculpatory or exculpatory evidence that is relevant and not otherwise impermissible.
9. Providing ten (10) calendar days for each party to review and submit written comments on the draft investigation report and, upon request, to review relevant and not otherwise impermissible evidence gathered by the investigator before finalizing the investigation report; and
10. Taking reasonable steps to prevent and address the party’s unauthorized disclosure of information and evidence obtained solely through the investigation procedure. Such steps shall not prevent the parties from using the information or evidence for related disciplinary proceedings or litigation related to the complaint of sex discrimination.

B. Confidentiality

Evergreen will seek to protect the privacy of the Complainant to the fullest extent possible, consistent with the legal obligation to investigate, offer appropriate supportive measures and/or take disciplinary action, and comply with the federal and state law, as well as Evergreen policies and procedures. Although Evergreen will attempt to honor the Complainant’s requests for confidentiality, it cannot guarantee complete confidentiality. Determinations regarding how to handle requests for confidentiality will be made by the Title IX Coordinator.

Evergreen has designated the following positions as Confidential Employees on-campus:

• Counselors and Medical Staff in Student Wellness Services

Confidential employees, when acting in their confidential capacity, will maintain confidentiality of information shared by a Complainant and are not required to report conduct that may reasonably constitute sex discrimination to the Title IX Coordinator. When a Confidential Employee learns of conduct that reasonably may constitute sex discrimination, the Confidential Employee must explain (1) their status as a confidential employee, including the circumstances under which they are not required to notify the Title IX Coordinator to make about the possible sex discrimination and (2), how the Complainant can contact the Title IX Coordinator to make a complaint about the possible sex discrimination, and (3) that the Title IX Coordinator may offer and coordinate supportive measures, as well as initiate an informal resolution process or investigation pursuant to these procedures.

The Title IX Coordinator or their designee will inform the Complainant about Evergreen’s Title IX Policy and Procedure and attempt to obtain consent from the Complainant before commencing an investigation of alleged sex-based harassment or sex discrimination. The Title IX Coordinator or their designee will discuss with the Complainant the process if the Complainant does want confidentiality and discuss possible outcomes with the Complainant.

If a Complainant asks that their name not be revealed to the Respondent or that Evergreen not investigation the allegation, the Title IX Coordinator will inform the Complainant that maintaining confidentiality may limit Evergreen’s ability to fully respond to the allegations and that retaliation by the Respondent and/or others is prohibited. If the Complainant still insists that their name not be disclosed or that Evergreen not investigate, the Title IX Coordinator will determine whether Evergreen can honor the request and at the same time maintain a safe and nondiscriminatory environment for all members of the Evergreen community, including the Complainant.

If Evergreen is unable to honor a Complainant’s request for confidentiality, the Title IX Coordinator will notify the Complainant of the decision and disclose the Complainant’s identity only to the extent reasonably necessary to effectively conduct and complete the investigation in compliance with this Procedure.

If Evergreen decides not to conduct an investigation or take disciplinary action because of a request for confidentiality, the Title IX Coordinator will evaluate whether other measures are available to address the circumstances giving rise to the complaint and prevent their recurrence and implement such measures if reasonably feasible.

C. Notice of Investigation and Other Notice Requirements

Notice of Investigation

Upon receiving a complaint of sex discrimination, the Title IX Coordinator will initiate the investigation by serving the Respondent and the Complainant with a Notice of Investigation in advance of their initial interviews. This Notice will be served sufficiently in advance to allow parties adequate time to prepare for their initial interviews.

If a complaint includes allegations of sex-based harassment and Evergreen has reasonable concerns for the safety of any person as a result of providing a Notice of Investigation, service of the Notice may be reasonably delayed in order to address the safety concern appropriately. Reasonable concerns must be based on individualized safety and risk analysis and not on mere speculation or stereotypes.

The Notice of Investigation must:

1. Include a description of Evergreen’s Title IX Policy and Procedure, including descriptions of procedures applicable to sex-based harassment and informal resolution process, if applicable.
2. Sufficient information for the parties to respond to the allegations, including the identities of the parties, a description of the alleged prohibited conduct, and the time and location of the alleged incident, to the extent this information is available to Evergreen.
3. A statement that retaliation is prohibited.
4. Inform the parties of Evergreen’s obligation to record interviews.
5. Identify the range of possible sanctions that may be imposed if the Respondent is found responsible for the alleged violation(s);
6. Inform the parties that they are entitled to have an Advisor of their choice and at their own expense, available during the investigation and any disciplinary proceedings and that the Advisor may be, but is not required to be an attorney, and that during the investigation, the Advisor’s role will be limited to attending meetings or interviews with the party and providing advice to the party.
7. A statement that the parties are entitled to an equal opportunity to access a description of the relevant, not otherwise impermissible evidence and that both parties shall have an equal opportunity to review such evidence upon request.

In cases involving allegations of sex-based harassment, the Notice of Investigation shall also inform the parties that:

1. The Respondent is presumed not responsible for the alleged sex-based harassment until a determination is made at the conclusion of the applicable disciplinary procedure and prior to such a determination, the parties will have the opportunity to present relevant and not otherwise impermissible evidence to a trained, impartial Decision Maker.
2. A statement that the parties are entitled to an equal opportunity to access the investigation report describing the relevant, not otherwise impermissible evidence, and that both parties shall have an equal opportunity to review this evidence upon request.
3. Notice that Evergreen’s Non-Discrimination Policy and the Code of Student Rights and Responsibilities prohibit employees and students from knowingly making false statements or knowingly submitting false information during an investigation or disciplinary proceeding.

Amended Notice of Investigation

If during the course of the investigation, Evergreen decides to investigate sex discrimination allegations against a party that are not included in the original Notice of Investigation, Evergreen will issue an amended Notice of Investigation to both parties that includes this additional information and complies with the applicable notice requirements set forth above.

Notice of Meetings and Interview

In cases involving allegations of sex-based harassment, Evergreen shall provide written notice to parties whose participation in, invited or expected of the date, time, location, participants, and purposes of all meeting     or proceedings with sufficient time for the party to prepare to participate.

D. Investigation Process

During the investigation, the Investigator:

1. Will provide the parties with equal opportunity to present relevant statements, and other evidence in the form of fact or expert witnesses and inculpatory or exculpatory evidence.
2. Will not restrict the ability of either party to discuss the allegations under investigation or gather and present relevant evidence, except when a no contact order has been imposed based on an individualized and fact specific determination that a party poses a threat to the health, safety, or welfare of another party and/or witnesses or when contact with a party and/or witness is prohibited by court order. A college-imposed no contact order shall be no broader than is necessary to protect the impacted party or witness and must provide the party or their Advisor with alternative means of gathering and presenting relevant evidence from the protected party or witness.
3. Will allow each party to be accompanied by an Advisor of their choosing, who may be an attorney, to any investigation related meeting or interview. Advisors’ roles during the investigation meetings or interviews will be limited to providing support and advice to the party. Advisors will not represent or otherwise advocate on behalf of the parties during investigation process. An attorney advising a party must enter a notice of appearance with the Title IX Coordinator by emailing titleixcoordinator@evergreen.edu at least five (5) days before the initial interview or meeting they plan to attend, so Evergreen can secure its own legal representation, if applicable.
4. In cases involving allegations of sex-based harassment, the Investigator will provide both parties and their respective Advisors with an equal opportunity to review the draft investigation report and to inspect and review relevant and not otherwise impermissible evidence upon request. After disclosure of the report, each party will receive ten (10) days in which to submit a written response and questions to the other party and witnesses, which the Investigator will consider the written response and provide follow-up interviews with parties to ask relevant questions. If a party fails to submit a written response within ten (10) days, the party will be deemed to have waived their right to respond and the Investigator will finalize the report without this information.
5. During sex discrimination and sex-based harassment investigations under this procedure, the Investigator may not require, allow, rely upon, or otherwise use questions or evidence that seeks disclosure of privileged communications, unless the privilege has been effectively waived by the holder. This provision applies, but is not limited to, information subject to the following:
   1. Spousal/domestic partner privilege;
   2. Attorney-Client and attorney work product privilege;
   3. Privileges applicable to members of the clergy and priests;
   4. Privileges applicable to medical providers, mental health therapists, and counselors;
   5. Privileges applicable to sexual assault and domestic violence advocates; or
   6. Other legal privileges identified in RCW 5.60.060.
6. Prior sexual behavior. Questions or evidence about a Complainant’s sexual predisposition or prior sexual behavior are not relevant and must be excluded, unless such question or evidence:
   1. Is asked or offered to prove someone other than the Respondent committed the alleged misconduct; or
   2. Concerns specific incidents of prior sexual behavior between the Complainant and the Respondent, which are asked or offered on the issue of consent.
7. Upon completion of the investigation, the Title IX Coordinator will distribute the final investigation report to the parties. The Title IX Coordinator will make a determination, based off the final investigation report, whether pursuing disciplinary action is warranted. If so, the Title IX Coordinator will provide the final investigation report and the evidence gathered during the investigation to the Decision Maker(s), who are:
   1. For cases where the Respondent is a student, the Dean of Students or their designee
   2. For cases where the Respondent is a staff member, the Executive Vice President or their designee
   3. For cases where the Respondent is a faculty member, the Provost or their designee
8. Decision Makers will make a determination of responsibility based on the preponderance of the evidence standard. A preponderance of the evidence means on a more probable than not basis.

E. Evidence

The introduction and consideration of evidence during the investigation and appeal hearings are subject to the following definitions, procedures, and restrictions:

1. Relevant or Relevance means a question or evidence is related to the allegations of sex discrimination at issue in the proceeding. Questions are relevant when they seek evidence that may aid in showing whether the alleged sex discrimination occurred, and evidence is relevant when it may aid the Decision Maker and if applicable, the Appellate Officer(s) in determining whether the alleged sex discrimination occurred.
2. Impermissible Evidence:
   1. Privileged information. The Decision Maker and if applicable Appellate Officer(s) 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:
      1. Spousal/domestic partner privilege;
      2. Attorney-Client and attorney work product privilege;
      3. Privileges applicable to members of the clergy and priests;
      4. Privileges applicable to medical providers, mental health therapists, and counselors;
      5. Privileges applicable to sexual assault and domestic violence advocates, and other legal privileges identified in RCW 5.60.060.
   2. Prior sexual behavior. Question or evidence about a Complainant’s sexual predisposition or prior sexual behavior are not relevant and must be excluded, unless such question or evidence:
      1. Is asked or offered to prove someone other than the Respondent committed the alleged misconduct; or
      2. Concerns specific incidents of prior sexual behavior between the Complainant and the Respondent, which are asked or offered on the issue of consent.
3. The Decision Maker and if applicable, the Appellate Officer(s) may not make an inference regarding responsibility solely on a witness or party’s absence from the proceeding or refusal to answer questions.
4. During the investigation, the Investigator will work with the Complainant and Respondent to question the other parties. The Investigator shall review, in advance, all questions the Complainant and Respondent propose to ask for relevance and whether the questions seek otherwise impermissible evidence. The Investigator shall explain on the record the reasons for excluding any questions and provide notification to the party who submitted question(s). If a question is excluded as unclear or harassing, the party proposing the question shall have an opportunity to clarify or revise the question. If questions are submitted for review in writing, the written questions shall be retained as part of the investigation record.
5. In a proceeding involving allegations of sex-based harassment in which a student is the Complainant, all questioning of witnesses on behalf of the Complainant and Respondent shall be conducted either by their respective Advisors or the Decision Maker. Determination of who will conduct the questioning is at the discretion of the Decision Maker.

F.    Dismissal of Complaint During Investigation

1. During an investigation, a sex discrimination complaint may be dismissed, in whole or in part, for the following reasons:
   1. The Respondent cannot be identified, after Evergreen has taken reasonable steps to do so;
   2. The Respondent is not participating in Evergreen’s educational programs and activities and is not employed by Evergreen. Evergreen’s discretion to dismiss a sex-based harassment complaint lodged against a former employee may be limited by RCW 28B.112.070, which requires the College to complete investigations into allegations of sexual misconduct by employees directed at student Complainants unless the Complainant requests otherwise.
   3. The Complainant has voluntarily withdrawn any or all of the allegations in the complaint, and the Title IX Coordinator has declined to initiate their own complaint, and any remaining allegations would not constitute sex discrimination, even if proven. In cases involving allegations of sex-based harassment, Evergreen must obtain the Complainant’s withdrawal in writing before dismissal.
   4. The conduct alleged by the Complainant, even if proven, would not constitute sex discrimination; or
   5. The conduct alleged by the Complainant falls outside Evergreen’s disciplinary jurisdiction.
2. The Complainant and the Respondent (if the Respondent has been notified of the complaint) may appeal the dismissal of a complaint pursuant to this Policy’s Dismissal Appeals section below. 
3. If the dismissal occurs during the investigation, the Title IX Coordinator will provide the Complainant or the Complainant and the Respondent (if the Respondent has been notified of the complaint) written notice explaining:
   1. Why dismissal was necessary or desirable;
   2. The right to appeal the dismissal and a description of the procedure for appealing the dismissal; and
   3. If applicable, notice that the complaint is being referred to an appropriate disciplinary authority for proceedings outside the jurisdiction of Title IX.
4. If the dismissal involves an allegation of sex-based harassment and the parties have both been notified of the investigation, the Notice of Dismissal will be served on the parties simultaneously.
5. When a complaint is dismissed, the Title IX Coordinator will, at a minimum:
   1. Offer supportive measures to the Complainant as appropriate;
   2. If the Respondent has been notified of the allegations, offer supportive measures to the Respondent as appropriate;
   3. Take other prompt and effective steps, as appropriate, to ensure that sex discrimination does not continue or recur within the College’s educational program or activity.
6. Dismissal of a sex discrimination complaint does not prohibit Evergreen from investigating and pursuing discipline based on allegations that a Respondent violated other federal or state laws and regulations, Evergreen policies, and/or other codes and contractual provisions governing student and employee conduct.

G. Dismissal Appeal Process

All parties have the right to appeal from a dismissal, in whole or part, of a complaint during the investigation process. Appeals must be in writing and filed with the Title IX Coordinator with twenty-one (21) calendar days of service of the Notice of Dismissal. Appeals must identify the specific information in the Notice of Dismissal being challenged and must contain arguments as to why the appeal should be granted. Failure to file a timely appeal constitutes a waiver of the right to appeal and the dismissal shall be deemed final.

Upon receiving a timely dismissal appeal, the Title IX Coordinator will serve a copy of the dismissal appeal on all non-appealing parties, who will have ten (10) business days from the date of service to submit a written response to the Title IX Coordinator, addressing issues raised in the dismissal appeal. Failure to file a timely written response constitutes a waiver of the right to participate in the dismissal appeal. Upon receipt of written responses, the Title IX Coordinator will provide all information to the Appellate Officer, the president of the college.

The Appellate Officer, based on their review of the party’s submissions and the investigation report and evidence, will make a determination on the dismissal appeal, determining whether the grounds for appeal have merit, provide the rationale with this conclusion, and state whether the dismissal is affirmed or denied.

This determination of appeal decision shall be served on all parties and the Title IX Coordinator by the Appellate Officer.

H. Supportive Measures

1. The Title IX Coordinator must offer and coordinate supportive measures to both the Complainant and the Respondent. Supportive measures may vary depending on the circumstances and what Evergreen may determine to be reasonably available. Supportive measures may include, but are not limited to: 
   • counseling; 
   • extensions of deadlines and other course-related adjustments; 
   • campus escort services; 
   • increased security and monitoring of certain areas of the campus; 
   • restrictions on contact applied to one or more parties;
   • leaves of absence; 
   • changes in class, work, housing, or extracurricular or other activities, regardless of whether there is or is not a comparable alternative; and
   • training and education programs related to sex-based harassment.
2. Supportive measures may not be imposed for punitive or disciplinary purposes.
3. Supportive measures must not unreasonably burden either party and must be designed to protect the safety of the parties and/or Evergreen’s educational environment, or to provide support to the parties during the formal or informal resolution processes.
4. The Title IX Coordinator may modify or terminate the supportive measures during or after formal or informal resolution procedures are completed, as the parties and/or Evergreen circumstances change.
5. If at any point during a Title IX Process, a party becomes dissatisfied with their supportive measures or undergoes a change of circumstances that warrants revisions to their supportive measures, the party may submit a request to revise their supportive measures to the Title IX Coordinator. The Title IX Coordinator will respond to such a request within five (5) calendar days. If the party disagrees with the Title IX Coordinator’s decision, they may submit a written appeal to the Dean of Students for student appeals, or the Executive Vice President for employee appeals, or their designee(s) within five (5) calendar days of receiving the Title IX Coordinator’s decision. Review of the appeal shall be performed by an impartial employee with authority to modify or reverse the Title IX Coordinator’s decision to provide, deny, modify or terminate supportive measures applicable to the party seeking review. Challenged supportive measures will be reviewed to determine whether they are meeting the purposes set forth in paragraph 3 above.
6. In cases involving allegations of sex discrimination other than sex-based harassment and retaliation, Evergreen is not required to alter the alleged discriminatory practice(s) for the purpose of providing a supportive measure.

H. Emergency Removal

If a student Respondent poses an immediate threat to the health and safety of the Evergreen community or an immediate threat of significant disruption to Evergreen operations, the Title IX Coordinator, after consultation with applicable personnel, may issue an interim suspension pursuant to WAC 174-123-200. The interim suspension shall remain in place pending completion of the investigation and final resolution of any resulting disciplinary proceedings.

If an interim suspension is put into place, the Complainant shall be notified on the same day it was served on the Respondent. The Title IX Coordinator will provide the Complainant with timely notice of any subsequent changes to the interim suspension order.

Nothing in this policy prohibits Evergreen from placing an employee Respondent on administrative leave pending completion of the investigation and final resolution of any resulting disciplinary proceeding.

I. Complaint Resolution and Consolidation

The sex discrimination resolution processes are initiated when the Title IX Coordinator receives a written or oral complaint from the Complainant alleging that a Respondent(s) discriminated against them on the basis of their sex and the Complainant asks that Evergreen initiate an investigation. A complaint may be submitted by the Complainant orally or in writing or it may be initiated and signed by the Title IX Coordinator on behalf of the Complainant. Complaints submitted to the Title IX Coordinator may be resolved through either informal or formal resolution processes.

Informal Resolution

1. Under appropriate circumstances and only if the Complainant and Respondent voluntarily agree, the parties may pursue informal resolution during the investigation of a concern. Informal resolution is not appropriate when the allegation involves:
   1. Complainant who is a minor or a vulnerable adult;
   2. Respondent poses an immediate threat to the health, safety, or welfare of a member of the Evergreen community;
   3. Employee who is alleged to have engaged in sex-based harassment of a student Complainant.
2. If informal resolution is appropriate, the parties may explore resolution through:
   1. Guided conversations or communications conducted by the Title IX Coordinator, a Human Resource Services Representative, or some other mutually agreed upon third party;
   2. A structured resolution process conducted by a trained mediator; or
   3. Voluntary agreement between the parties to alter either or both parties’ campus work or class schedules and/or student campus housing arrangements or other measures including No Contact Orders through Evergreen.
3. A proposal to engage in informal resolution should be provided to the parties in the Notice of Investigation or after the Notice of Investigation has been served to both parties.
4. Before engaging in informal resolution, Evergreen must provide written notification to the parties of their rights and responsibilities. This notice shall explain:
   1. The allegations;
   2. The requirements of the informal resolution process;
   3. That, prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and initiate or resume the formal resolution process;
   4. That the party’s agreement to a resolution at the conclusion of the informal resolution process will prevent the parties from initiating or resuming the formal resolution process;
   5. That the potential terms of any informal resolution agreement will only be binding on the parties to the agreement; and
   6. What information Evergreen will retain from the informal resolution process and how that information will be used, if the process is not successful and the formal resolution process is initiated or resumed.
5. Because the informal resolution process is voluntary, either party may withdraw from the informal resolution process at any time, at which point the formal investigation process will resume.
6. If the parties voluntarily resolve a complaint through informal resolution, Evergreen will record the terms of the resolution in a written agreement signed by both parties and provide written notice to both parties that the complaint has been closed.
7. If the parties agree to an informal resolution process, Evergreen’s Title IX Coordinator will commence informal resolution within 30 calendar days after the parties agree to this option and conclude within 60 calendar days of beginning that process; subject to reasonable delays and extensions for good cause shown.

Formal Resolution

Formal resolution means that the Complainant’s allegations of sex discrimination will be subjected to a formal investigation by an impartial and unbiased investigator. The investigation may be conducted by the Title IX Coordinator or their designee. The results of the investigator’s report will be shared with the parties and the Title IX Coordinator, in addition to the Decision Maker to determine responsibility and sanctioning.

Consolidation of Complaints

Complaints of sex discrimination may be consolidated when the complaints are against more than one Respondent, or by more than one Complainant against one or more Respondents, or by one party against another party, when the allegations of sex discrimination arise out of the same facts or circumstances.

J. False Claims

A person who knowingly makes false allegations of sex-based harassment under this Title IX Policy and Procedure, or who knowingly provides false information in a Title IX procedure shall be subject to disciplinary action.

Disciplinary Procedures

A. Order of Precedence

This disciplinary procedure applies to allegations of sex discrimination and sex-based harassment subject to regulations promulgated under Title IX by the United States Department of Education. Disciplinary proceedings against an employee Respondent alleged to have engaged in sex discrimination or sex-based harassment shall be governed by Evergreen’s Administrative Hearing Practices and Procedures, WAC 174-108-910 and this disciplinary procedure. To the extent this disciplinary procedure conflicts with WAC 174-108-910 and/or provisions set forth in employment contracts, collective bargaining agreements, employee handbooks, and other Evergreen employment policies and procedures, this disciplinary procedure will take precedence.

Disciplinary proceedings against a student Respondent alleged to have engaged in sex discrimination or sex-based harassment shall be governed by this policy and the Code of Student Rights and Responsibilities, WAC 174-123. To the extent these procedures conflict with Evergreen’s Student Code of Rights and Responsibilities procedures, this Title IX Policy and Procedure shall take precedence.

Notwithstanding the foregoing, if the Respondent is a tenured or probationary faculty member and the Decision Maker or their designee determines that the facts found in the investigation report would warrant the Respondent’s dismissal from Evergreen, the Decision Maker or their designee will refer the matter to the Tenure Dismissal Committee for a hearing pursuant to RCW 28B.50.863 and applicable procedures set forth in the faculty union Collective Bargaining Agreement (CBA). To the extent CBA’s Tenure Dismissal Committee procedures are inconsistent or conflict with this disciplinary procedure, the disciplinary sections will prevail. At the end of the hearing, the Tenure Dismissal Committee will issue a recommendation consistent with the provisions set for below. Subject to these procedures, the Complainant shall have the same right to appear and participate in the proceedings as the Respondent, including the right to present their position on the recommendation to the Hearing Chair before final action is taken.

This disciplinary procedure applies to allegations of sex discrimination arising on or after August 1, 2024.

For the Disciplinary Procedure for Students, please see Appendix A.
For the Disciplinary Procedure for Employees, please see Appendix B.

Appendix A: Code of Student Rights and Responsibilities Disciplinary Procedure for Students

WAC 174-123-355 | Order of precedence

This supplemental procedure applies to allegations of sex discrimination subject to Title IX jurisdiction pursuant to regulations promulgated by the United States Department of Education. See 34 C.F.R. Part 106. To the extent these supplemental hearing procedures conflict with Evergreen's standard disciplinary procedures, WAC 174-123-110 through 174-123-340, these supplemental procedures shall take precedence.

WAC 174-123-360 | Title IX definitions

For purposes of the supplemental Title IX student conduct procedure, the following terms used have the definitions contained in the Title IX policy and procedure and the terms below are defined as follows:

1. Consent means knowing, voluntary, and clear permission by word or action, 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.
   
   A person cannot consent if they are unable to understand what is happening or are disoriented, helpless, asleep, or unconscious for any reason, including due to alcohol or other drugs. An individual who engages in sexual activity when the individual knows, or should know, that the other person is physically or mentally incapacitated has engaged in nonconsensual conduct. Intoxication is not a defense against allegations that an individual has engaged in nonconsensual sexual conduct.
   
   Consent cannot be obtained by force or coercion. Force is the use of physical violence and/or imposing on someone physically to gain sexual access. Force also includes threats or intimidation (words or actions that cause an individual to submit to or comply with sexual contact or intercourse due to fear for their safety and/or implied threats) that overcomes free will or resistance. Coercion is unreasonable pressure for sexual contact or sexual intercourse. When someone makes clear to another person by word or action that they do not want to engage in sexual contact or intercourse, that they want to stop, or that they do not want to go past a certain point of sexual contact or intercourse, continued pressure beyond that point is coercive.
2. Complaint means a written or oral request that can be objectively understood as a request for Evergreen to investigate and make a determination about alleged sex discrimination.
3. Complainant means the following individuals who have been subjected to alleged conduct  that could constitute sex discrimination:
   1. A student or employee; or
   2. A person other than a student or employee who was participating in or attempting to participate in Evergreen’s educational program or activity at the time of the alleged discrimination.
4. Respondent means an individual who has been alleged to have violated Evergreen’s Title IX Policy and Procedure’s prohibited conduct.
5. Education program or activity includes locations, events, or circumstances over which Evergreen exercised substantial control over both the respondent and the context in which the alleged sex discrimination occurred. It also includes any building owned or controlled by a student organization officially recognized by the college.
6. Interim suspension means a temporary exclusion from enrollment, including exclusion from college premises or denial of access to all activities or privileges for which a respondent might otherwise be eligible, pending investigation and resolution of disciplinary proceedings pursuant to the procedure and standards set forth in WAC 174-123-200(2).
7. Confidential Employee means an Evergreen employee whose communications are privileged and confidential under Federal or State law. An employee’s status as a Confidential Employee only applies when they are functioning within the scope of duties to which the privilege or confidentiality applies.
8. Investigation Procedure is the process Evergreen uses to initiate, informally resolve, and/or investigate allegations that an individual has violated Evergreen policies prohibiting Sex Discrimination or Sex-Based Harassment.
9. Peer Retaliation means retaliation by a student against another student, or an employee against another employee.
10. Pregnancy or Related Conditions means
    1. Pregnancy, childbirth, termination of pregnancy, or lactation;
    2. Medical conditions related to pregnancy, childbirth, termination of pregnancy, or lactation;
    3. Recovery from pregnancy, childbirth, termination of pregnancy, lactation, or related medical conditions.
11. Relevant means related to the allegations of sex discrimination under investigation. Questions are relevant when they seek evidence that may aid in showing whether the alleged sex discrimination occurred, and evidence is relevant when it may aid a Decision Maker in determining whether the alleged sex discrimination occurred.
12. Remedies mean measures provided to a Complainant or other person whose equal access to Evergreen’s education program or activity has been limited or denied by sex discrimination. These measures are intended to restore or preserve that person’s access to educational programs and activities after a determination if sex discrimination has occurred.
13. Student Employee means an individual who is both a student and an employee of the college. When a Complainant or Respondent is a student employee, Evergreen will make a fact-specific inquiry to determine whether the individual’s primary relationship with the college is to receive an education and whether any alleged Code of Student Rights and Responsibilities violations, including but not limited to sex-based harassment, occurred while the individual was performing employment related work.
14. Student Group is a student organization, athletic team, or living group including but not limited to, student clubs and organizations, members of a class or student cohort, student performance groups, and student living groups.
15. Supportive Measures means reasonably available, individualized and appropriate, non-punitive and non-disciplinary measures offered by Evergreen’s Title IX Coordinator to the Complainant and Respondent without unreasonably burdening either party, and without fee or charge, for purposes of:
    1. Restoring or preserving the party’s access to Evergreen’s educational programs and activities, including measures that are designed to protect the safety of the parties or Evergreen’s educational environment; or
    2. Providing support during Evergreen’s Investigation and Disciplinary Procedures, or during nay informal resolution process.
16. Title IX Personnel are the Title IX Coordinator and designees; Investigators; Decision Makers and Hearing Panel members at both the hearing and appeal level responsible for administering Evergreen’s Title IX Policy and Procedure; facilitators of the Informal Resolution process, and any other employees who are responsible for implementing Evergreen’s Title IX Policy and Procedures for students and employees or have the authority to modify or terminate supportive measures.
17. Title IX Coordinator is responsible for processing Title IX complaints and conducting and/or overseeing investigations and informal resolution processes under this procedure, providing supportive measures and remedies if applicable.

WAC 174-123-370 | Prohibited conduct under Title IX

Pursuant to RCW 28B.50.140(13) and Title IX of the Education Amendments Act of 1972, 20 U.S.C. Sec. 1681, Evergreen may impose disciplinary sanctions up to and including dismissal from Evergreen against a student or student groups who have been found responsible for committing , attempting  to commit, aiding, abetting, inciting, encouraging, or assisting another person to commit or engage in act(s) of sex discrimination, including sex-based harassment.

1. Sex Discrimination, which includes sex-based harassment, occurs when a Respondent causes more than de minimis (insignificant) harm to an individual by treating them differently from an otherwise similarly-situated individual based on:
   1. Sex stereotypes;
   2. Sex characteristics;
   3. Pregnancy or related conditions;
   4. Sexual orientation; or
   5. Gender identity
2. Conduct that prevents a person from participating in an education program or activity consistent with a person’s gender identity subjects a person to more than de minimis harm on the basis of sex and is prohibited.
2. Sex-based Harassment. For purposes of this supplemental procedure, sex-based harassment is a type of sex discrimination that occurs when a Respondent engages in the following discriminatory conduct on the basis of sex:
   1. Quid pro quo harassment. An employee, agent or other person authorized by Evergreen to provide an aid, benefit, or service under Evergreen’s educational program or activity explicitly or impliedly conditioning the provision of such an aid, benefit or service on a person’s participation in unwelcome sexual conduct.
   2. Hostile environment. Unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is severe or pervasive that it limits or denies a person’s ability to participate in or benefit from Evergreen's educational programs or activities (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 ability to access Evergreen’s educational program or activity;
      2. The type, frequency, and duration of the conduct;
      3. The parties’ ages, roles within Evergreen’s educational 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 Evergreen’s educational program or activity.
3. Sexual Violence. Sexual Violence includes the following conduct:
   1. Nonconsensual sexual intercourse. 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.
   2. Nonconsensual sexual contact/fondling. 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.
   3. Incest. Sexual intercourse or sexual contact with a person known to be related to them, either legitimately or illegitimately, as an ancestor, descendant, brother, or sister of either wholly or half related. Descendant includes stepchildren and adopted children under the age of eighteen.
   4. Statutory rape. Non-forceable sexual intercourse with a person who is under the statutory age of consent.
4. Domestic violence. Physical violence, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, coercive control, damage or destruction of personal property stalking, or any other conduct prohibited under RCW 10.99.020, committed by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the state of Washington, or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of the state of Washington, RCW 26.50.010.
5. Dating violence. Physical violence, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, or stalking committed by a person:
   1. Who is or has been in a social relationship of a romantic or intimate nature with the victim; and
   2. Where the existence of such a relationship shall be determined based on a consideration of the following factors:
      1. The length of the relationship;
      2. The type of relationship; and
      3. The frequency of interaction between the persons involved in the relationship.
6. Stalking. Engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for their safety or the safety of others or suffer substantial emotional distress.
7. Retaliation. Means intimidation, threats, coercion, or discrimination against a person by Evergreen, a student, or an employee or other person authorized by Evergreen to provide aid, benefit, or service under Evergreen’s educational program or activity, for the purpose of interfering with any right or privilege secured by Evergreen policies and procedures prohibited Sex Discrimination, 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 part, including in an informal resolution process or this procedure. Nothing in this definition prevents Evergreen from requiring an employee to provide aid, benefit, or service under Evergreen’s educational program or activities to participate as a witness in, or otherwise assist with, an investigation, proceeding or hearing.

WAC 174-123-380 | Title IX jurisdiction

1. This supplemental procedure applies only if the alleged misconduct:
   1. Meets the definition of sex discrimination, sex-based harassment or retaliation as defined in this procedure, including causing more than de minimis harm to the Complainant;
   2. Occurred in the United States or interfered with the Complainant’s ability to access or participate in Evergreen’s educational programs or activities in the United States; and
   3. Occurred during an Evergreen educational program or activity or interferes with the Complainant’s ability to access or participate in Evergreen’s educational program or activity. 
2. Proceedings under this procedure must be dismissed if the Title IX Coordinator determines that one or all of the requirements of subsection (1)(a) through (c) of this section have not been met. Dismissal under this procedure does not prohibit the college from pursuing other disciplinary action based on allegations that the respondent violated other provisions of Evergreen's Code of Student Rights and Responsibilities, WAC 174-123-170.
3. If the Title IX Coordinator determines the facts in the investigation report are not sufficient to support Title IX jurisdiction and/or pursuit of a Title IX violation, the Title IX Coordinator must issue a notice of dismissal in whole or part to both parties explaining why some or all of the Title IX claims have been dismissed.
4. Both parties can appeal the dismissal of the complaint, with the procedures described in this policy.

WAC 174-123-390 | Initiation of discipline

1. Upon receipt of the investigation report, the Decision Maker shall independently review the report to determine whether, by the preponderance of the evidence, there was a violation of Evergreen’s Title IX Policy and Procedure and if so what disciplinary sanction(s) and/or remedies will be determined. The Decision Maker has the ability to speak with parties at their discretion should additional information be needed. The Decision Maker will, within fourteen (14) calendar days of receiving the investigation report, serve the respondent, complainant and Title IX coordinator with a proposed order, which includes a description of the facts and conclusions supporting the decision, as well as sanction(s). The time for serving this proposed order may be extended by the decision maker for good cause.
2. The Decision Maker will be responsible for drafting the proposed order that:
   1. Identifies the allegations of sex discrimination;
   2. Describes the procedures of this policy and process, starting with Evergreen’s receipt of the complaint through the proposed order, including notices to parties, interviews with witnesses and parties, site visits, methods used to gather evidence, and interviews held;
   3. Makes findings of fact supporting the proposed order;
   4. Reaches conclusions as to whether the facts establish whether the Respondent is responsible for engaging in sex discrimination in violation of Title IX;
   5. Contains a statement of, and a rationale for the determination of responsibility for each allegation;
   6. Describes the disciplinary sanction or conditions imposed against the Respondent, if any;
   7. Describes to what extent, if any, the Complainant is entitled to remedies designed to restore or preserve the Complainant’s equal access to Evergreen’s educational program and activities; and
   8. Describes the process for requesting an appeal hearing to the Title IX Coordinator.
3. The proposed order shall be served on the parties and the Title IX Coordinator. If the case involves allegations of sex-based harassment, the proposed order shall be served on the parties and Title IX Coordinator simultaneously.
4. The Complainant or Respondent shall have twenty-one (21) calendar days from service of the proposed order to either accept the proposed order or request an appeal hearing before the Title IX hearing panel. The request may be verbal or written but must be clearly communicated through the Title IX Coordinator.
   1. Requests for appeal must identify the specific findings of fact and/or conclusions in the proposed order being challenged and must contain argument(s) as to why the appeal should be granted.
5. Upon receiving a request for an appeal, the Title IX Coordinator shall promptly notify the Decision Maker, the other party, party’s advisors, and the Appeal Hearing chair of the request and forward a copy of the proposed order to the Appeal Hearing chair. The written appeal notice must:
   1. Set forth the basis of Title IX jurisdiction;
   2. Identify the alleged Title IX violation(s);
   3. Set forth the facts underlying the allegation(s);
   4. Explain to the parties that they will have an opportunity to present relevant and not otherwise impermissible evidence to a trained, impartial appellate officer(s);
   5. Provide the proposed order which makes clear the rationale for the decision and sanctions;
   6. Explain that the parties are entitled to be accompanied by an advisor of their choosing during the hearing and that:
      1. Advisors will be responsible for questioning all witnesses and the other party on the party’s behalf;
      2. Advisors may be an attorney;
      3. Evergreen will appoint the party an advisor of Evergreen’s choosing at no cost to the party if the party does not choose an advisor.
   7. Explain that if a party fails to appear at the hearing, a decision on the appeal may be made in the party’s absence;
   8. A statement that the parties are entitled to an equal opportunity to access relevant and permissible evidence, or a description of the evidence upon request and prior to the appeal hearing.
6. If no requests for an appeal hearing is provided to the Title IX Coordinator within twenty-one (21) calendar days, the Decision Maker’s proposed order will be final and the disciplinary sanctions, if any, shall be implemented immediately.
7. Service of the final order or any other document required to be served under this procedure shall be done:
   1. In person; or
   2. By first class or certified mail to the party’s last known address and by electronic mail to the party’s Evergreen email address.

WAC 174-123-400 | Appeal prehearing procedure

1. In cases where the proposed order and sanctions are not expulsion or suspension over 10 calendar days, parties will have their appeal hearing through a Brief Adjudicative Proceeding, conducted by an appellate officer and in accordance to WAC 170-123-270 through 280. In cases where the proposed order and sanctions are expulsion or suspension over ten (10) days, parties will have their appeal hearing head through a Hearing Panel in accordance to WAC 174-123-290 through 310.
2. Upon receiving the proposed order and the request for an appeal, the Title IX Coordinator will send a hearing notice to all parties, in compliance with WAC 174-123-390(5). In no event will the hearing date be set less than ten (10) days after the Title IX Coordinator provided the proposed order to the parties. Evergreen may, at its discretion, contract with an administrative law judge or other qualified person to act as the hearing panel.
3. Any party may make a written request for an extension of time and must do so no later than 48 hours before any date specified in the appeal notice. A party requesting an extension of time should provide a statement to the appellate officer, in writing, and provide rationale for the extension. Once received, the written request will be served by email to all parties. Any party may respond and object to the request for an extension of time no later than 24 hours after service of this written request. The appellate officer will make a determination to grant the extension of time if it shows good cause and will serve a written decision onto the parties and will include the reasons for granting or denying any request. The appellate officer’s decision on an extension request will be final.
4. Complainants and Respondents may be accompanied by an advisor of their choice during the process at the party’s own expense. The advisor may be an attorney. If a party does not select their own advisor, Evergreen will provide the party with an advisor at no cost to the party.
   1. If the advisor is an attorney, the advisor must file a notice of appearance with the Title IX coordinator, who will provide copies to all parties and the appellate officer(s) at least five (5) calendar days before the hearing. If a notice of appearance is not filed within this timeframe, the party will be deemed to have waived their right to have an attorney as an advisor.
5. In preparation for the appeal hearing, Evergreen will provide parties with an accurate description of all relevant and not otherwise privileged evidence gathered by the investigator during the investigation, regardless of whether Evergreen intends to offer the evidence at the appeal hearing. All parties shall have an equal opportunity to access the evidence upon request.
6. The appeal hearing may, or upon the request of any party, must, conduct the hearing with the parties physically present in separate locations, with technology enabling the appellate officer(s) and parties to simultaneously see and hear the party or the witness while the person is speaking.
7. The appellate officer may, upon written request of any party and showing good cause, extend the time for disclosure of witness and exhibit list, accessing and reviewing evidence, or the hearing date.

WAC 174-123-410 | Rights of parties

1. The Evergreen State College's Code of Student Rights and Responsibilities, this chapter, and this supplemental procedure shall apply equally to all parties.
2. The College has the burden of offering and presenting sufficient evidence to establish that the Respondent is responsible for engaging in sex discrimination, sex-based harassment or retaliation related to or arising from such allegations by a preponderance of the evidence standard.
3. The Respondent will be presumed not responsible until such time as the disciplinary process has been resolved.
4. The provisions of this disciplinary procedure shall apply equally to the Respondent and the Complainant.

WAC 174-123-420 | Evidence

The introduction and consideration of evidence during the investigation and appeal hearings are subject to the following definitions, procedures, and restrictions:

1. Relevant or relevance means a question or evidence is related to the allegations of sex discrimination at issue in the proceeding. Questions are relevant when they seek evidence that may aid in showing whether the alleged sex discrimination occurred, and evidence is relevant when it may aid the appellate officer(s) in determining whether the alleged sex discrimination occurred.
2. Impermissible Evidence:
   1. Privileged information. The appellate officer(s) 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:
      1. Spousal/domestic partner privilege;
      2. Attorney-Client and attorney work product privilege;
      3.  Privileges applicable to members of the clergy and priests;
      4. Privileges applicable to medical providers, mental health therapists, and counselors;
      5. Privileges applicable to sexual assault and domestic violence advocates, and other legal privileges identified in RCW 5.60.060.
   2. Prior sexual behavior. Question or evidence about a complainant’s sexual predisposition or prior sexual behavior are not relevant and must be excluded, unless such question or evidence:
      1. Is asked or offered to prove someone other than the respondent committed the alleged misconduct; or
      2. Concerns specific incidents of prior sexual behavior between the complainant and the respondent, which are asked or offered on the issue of consent.
3. The appellate officer(s) may not make an inference regarding responsibility solely on a witness or party’s absence from the proceeding or refusal to answer questions.
4. During the hearing, the appellate chair will work with the Complainant and Respondent to question the other parties.

WAC 174-123-430 | Appeal hearing

1. In cases involving sex-based harassment, the Complainant and the Respondent may not directly question one another during the appeal hearing. The appellate officer(s) will determine whether questions will be submitted through the appellate chair or asked by the party’s advisor.
   1. The appellate officer(s) may revise this process if, in the appellate officer’s determination, the questioning by any party, advisor, or attorney becomes contentious or harassing.
2. Prior to any question being posed to a party or witness, the appellate officer(s) must determine whether the question is relevant and not otherwise impermissible; and must explain any decision to exclude a question that is deemed not relevant or is otherwise impermissible. Any written copies will be retained for the record.
3. The appellate officer(s) must not permit questions that are unclear or harassing; but shall give the party an opportunity to clarify or revise such a question.
4. The appellate officer(s) shall exclude and not consider legally privileged information, outlined in the Evidence section of this policy, unless the individual holding the privilege has waived that privilege.
5. The appellate officer(s) shall exclude and shall not consider questions or evidence that relate to the complainant’s sexual interests or prior sexual conduct, unless such question or evidence is offered to prove someone other than the respondent committed the alleged conduct or is evidence of specific instances of prior sexual conduct with the respondent that are offered to prove consent.
6. The appellate officer(s) may choose to place less or no weight upon statements by a party or witness who refuses to respond to questions. The appellate officer(s) must not draw an inference about whether sex-based harassment occurred based solely on a party or witness’s refusal to respond.
7. At the conclusion of the appeal hearing, the appellate officer(s) will have fourteen (14) calendar days to make a written final decision. The final decision will include:
   1. Determining the grounds for appeal;
   2. Determine whether the decision of responsibility and/or sanctions in the proposed order is affirmed, vacated, or amended;
   3. If amended, set for the new disciplinary sanctions and conditions;
   4. Information on the ability to administratively appeal for a final appeal.
8. The final decision shall be served on all parties and the Title IX Coordinator. If a case involves sex-based harassment, the final decision shall be served on the parties and the Title IX Coordinator simultaneously.

WAC 174-123-440 | Final appeal

1. The parties shall have the right to appeal the final decision from the appellate officer(s). The parties may do so by filing a written notice of final appeal with the Title IX Coordinator within ten (10) calendar days of service of the final decision. Failure to timely file a notice of final appeal constitutes a waiver of the right to appeal and the decision shall be deemed final.
2. Either party may request a final appeal based on the following criteria:
   1. Procedural irregularity that affected the outcome of the determination; 
   2. New evidence discovered that was not reasonably available at the time of the determination;
   3. A conflict of interest from a Title IX personnel; or
   4. Severity of sanctioning is not consistent with the violation.
3. The president or their designee will determine whether the grounds for final appeal have merit, provide the rationale for this conclusion, and state whether the disciplinary sanction and condition(s) imposed in the final decision are affirmed, vacated, or amended, and, if amended, set forth any new disciplinary sanction and/or condition(s).
4. The president's office shall serve the final decision on the parties simultaneously.
5. The final decision will include information on the ability to judicially appeal to the Washington Superior Courts, pursuant to applicable provisions of RCW 34.05, including but not limited to the timelines set forth in RCW 34.05.542.

WAC 174-123-450 | Code review

This code will be reviewed at least once within every five-year period, and such review will include students, faculty and staff. The senior college official or designee will conduct the review.

Appendix B: Disciplinary Procedure for Employees

A. Jurisdiction 

This disciplinary procedure applies only if the alleged misconduct:

1. Meets the definition of sex discrimination, sex-based harassment or retaliation as defined in this disciplinary procedure, including causing more than de minimis harm to the Complainant;
2. Occurred in the United States or interfered with the Complainant’s ability to     access or participate in Evergreen’s educational programs or activities in the United States; and
3. Occurred during an Evergreen educational program or activity, or interferes with the Complainant’s ability to access or participate in Evergreen’s educational program or activity.

Dismissal of the case may occur after the Investigator finalized the investigation report, the Title IX Coordinator determines that the facts alleged, even if proven, are not sufficient to support jurisdiction, must issue a notice of dismissal in whole or part to both parties explaining why some or all of the claims have been dismissed.

Both parties are able to appeal the dismissal of the complaint, with the procedures described in this policy.

B. Rights of Parties

1. The provisions of this disciplinary procedure shall apply equally to the Respondent and the Complainant.
2. The Respondent will be presumed not responsible until such time as the disciplinary process has been resolved.
3. Evergreen bears the burden of offering and presenting sufficient evidence to establish that the Respondent is responsible for engaging in sex discrimination, sex-based harassment, or retaliation related to or arising from such allegations by a preponderance of the evidence standard.

C. Initiation of Discipline

1. Upon receipt of the investigation report, the Decision Maker shall independently review the investigation report provided by the Title IX Coordinator, and determine whether, by a preponderance of the evidence, there was a violation of Evergreen’s Title IX Policy and Procedure and if so what disciplinary sanction(s) and/or remedies will be determined. The Decision Maker has the ability to speak with parties at their discretion, should additional information be needed. The Decision Maker will, within fourteen (14) calendar days of receiving the investigation report, serve the Respondent, Complainant and Title IX Coordinator with a proposed order, which includes a description of the facts and conclusions supporting the decision, as well as sanction(s). The time for serving a proposed order may be extended by the Decision Maker for good cause.
2. The Decision Maker will be responsible for drafting the proposed order that:
   1. Identifies the allegations of sex discrimination;
   2. Describes the procedures of this policy and process, starting with Evergreen’s receipt of the complaint through the determination of responsibility, including notices to parties, interviews with witnesses and parties, site visits, methods used to gather evidence, and interviews held;
   3. Makes findings of fact supporting the proposed order;
   4. Reaches conclusions as to whether the facts establish whether the Respondent is responsible for engaging in sex discrimination in violation of Title IX;
   5. Contains a statement of, and a rationale for the determination of responsibility for each allegation;
   6. Describes the disciplinary sanction or conditions imposed against the Respondent, if any;
   7. Describes to what extent, if any, the Complainant is entitled to remedies designed to restore or preserve the Complainant’s equal access to Evergreen’s educational program and activities; and
   8. Describes the process for appealing the proposed order to the Title IX Coordinator.
3. The proposed order shall be served on the parties and the Title IX Coordinator. If the case involves allegations of sex-based harassment, the proposed order shall be served on the parties and Title IX Coordinator simultaneously.
4. The Complainant or Respondent shall have twenty-one (21) calendar days from service of the proposed order to either accept the proposed order or request an appeal hearing before the Title IX Hearing Panel. The request may be verbal or written but must be clearly communicated to the Title IX Coordinator.
5. Requests for appeal must identify the specific findings of fact and/or conclusions in the proposed order being challenged and must contain argument as to why the appeal should be granted.
6. Upon receiving a request for an appeal, the Title IX Coordinator shall promptly notify the Decision Maker, the other party and Appeal Panel Chair of the request and forward a copy of the proposed order to the Appeal Panel Chair.
7. If no request for an appeal is provided to the Title IX Coordinator within twenty-one (21) calendar days, the Decision Maker’s proposed order will be final and the disciplinary sanctions, if any, shall be implemented immediately.
8. Service of the proposed order or any other document required to be served under this procedure shall be done:
   1. In person; or
   2. By first class or certified mail to the party’s last known address and by electronic mail to the party’s Evergreen email address.

D. Initiation of Appeal

If the Title IX Coordinator received a timely appeal to the proposed order, the Title IX Coordinator will file a written appeal notice with the Appellate Officer(s) and the Respondent, Complainant and their respective Advisors. The notice must:

1. Set forth the basis of Title IX jurisdiction;
2. Identify the alleged Title IX violation(s);
3. Set forth the facts underlying the allegation(s);
4. Explain to the parties that they will have an opportunity to present relevant and not otherwise impermissible evidence to a trained, impartial Appellate Officer(s);
5. Provide the proposed order which makes clear the rationale for the decision and sanctions;
6. Explain that the parties are entitled to be accompanied by Advisors of their choosing during the hearing and that:
7. Advisors will be responsible for questioning all witnesses and the other party on the party’s behalf;
8. Advisors may be an attorney and/or, if the party is a represented employee, a union representative;
9. Evergreen will appoint the party an Advisor of Evergreen’s choosing at no cost to the party if the party does not choose an Advisor
10. Explain that if a party fails to appear at the hearing, a decision on the Appeal may be made in the party’s absence.
11. A statement that the parties are entitled to an equal opportunity to access relevant and permissible evidence, or a description of the evidence upon request and prior to the Appeal Hearing.

E. Appeal Pre-Hearing Procedure

1. In cases where the proposed order and sanctions are not termination or suspension over 10 days, parties will have their appeal hearing heard through a Brief Adjudicative Proceeding, conducted by an Appellate Officer. In cases where the proposed order and sanctions are termination or suspension more than 10 days, parties will have their appeal hearing heard through a Title IX Hearing Panel.
2. Upon receiving the proposed order and the request for an appeal, the Title IX Coordinator will send a hearing notice to all parties in compliance with WAC 10-08-040. The hearing date may not be scheduled less than ten (10) calendar days after the Title IX Coordinator provides the proposed order to the parties. Evergreen may, at its discretion, contract with an administrative law judge or other qualified person to act as the hearing panel.
3. Any party may make a written request for an extension of time and must do so no later than 48 hours before any date specified in the notice. A party requesting an extension of time should provide to the Appellate Officer, in writing, and provide rationale for the extension. Once received, the written request will be served by email to all parties. Any party may respond and object to the request for an extension of time no later than 24 hours after service of this written request. The Appellate Officer will make a determination to grant the extension of time if it shows good cause and will serve a written decision onto the parties, and will include the reasons for granting or denying any request. The Appellate Officer’s decision on an extension request will be final.
4. Complainants and Respondents may be accompanied by an Advisor of their choice during the disciplinary process at the party’s own expense. The Advisor may be an attorney and/or if the party is a represented employee, a union representative. If a party does not select their own Advisor, Evergreen will provide the party with an advisor at no cost to the party.
   1. If the Advisor is an attorney, the Advisor must file a notice of appearance with the Title IX Coordinator, who will provide copies to all parties and the Appellate Officers at least five (5) calendar days before the hearing. If a notice of appearance is not filed within this timeframe, the party will be deemed to have waived their right to have an attorney as an Advisor.
   2. If a party is a represented employee who chooses not to use a union-provided Advisor, the party must provide the Title IX Coordinator with a signed waiver of union representation, including written consent from the union.
5. In preparation for the appeal hearing, Evergreen will provide parties with an accurate description of all relevant and not otherwise privileged evidence gathered by the investigator during the investigation, regardless of whether Evergreen intends to offer the evidence at the hearing. All parties shall have an equal opportunity to access the evidence upon request.
6. The appeal process may, or upon the request of any party, must, conduct the hearing with the parties physically present in separate locations, with technology enabling the Appellate Officers and parties to simultaneously see and hear the party or the witness while the person is speaking.
7. The Appellate Officer(s) may, upon written request of any party and showing good cause, extend the time for disclosure of witness and exhibit list, accessing and reviewing evidence, or the hearing date.

F. Appeal Hearing

1. In cases involving sex-based harassment, the Complainant and the Respondent may not directly question one another during the Appeal Hearing. The Appellate Officer(s) will determine whether questions will be submitted through the Appellate Hearing Chair, or asked by the party’s Advisors.
2. The Appellate Officer(s) may revise this process if, in the Appellate Officer’s determination, the questioning by any party, Advisor, or attorney becomes contentious or harassing.
3. Prior to any question being posed to a party or witness, the Appellate Officer(s) must determine whether the question is relevant and not otherwise impermissible; and must explain any decision to exclude a question that deemed not relevant or is otherwise impermissible. Any written copies will be retained for the record.
4. The Appellate Officer(s) must not permit questions that are unclear or harassing; but shall give the party an opportunity to clarify or revise such a question.
5. The Appellate Officer(s) shall exclude and shall not consider legally privileged information, outlined in the Evidence section of this policy, unless the individual holding the privilege has waived that privilege.
6. The Appellate Officer(s) shall exclude and shall not consider questions or evidence that relate to the Complainant’s sexual interests or prior sexual conduct, unless such question or evidence is offered to prove someone other than the Respondent committed the alleged conduct, or is evidence of specific instances of prior sexual conduct with the Respondent that are offered to prove consent.
7. The Appellate Officer(s) may choose to place less or no weight upon statements by a party or witness who refuses to respond to questions. The Appellate Officers must not draw an inference about whether sex-based harassment occurred based solely on a party or witness’s refusal to respond.
8. At the conclusion of the Appeal Hearing, the Appellate Officer(s) will have fourteen (14) calendar days to make a written Final Decision. The Final Decision will include:
   1. Determining the grounds for appeal;
   2. Determine whether the decision of responsibility and/or sanctions in the Written Decision is affirmed, vacated, or amended;
      1. If amended, set forth the new disciplinary sanctions and conditions;
   3. Information on the ability to request a final administrative appeal. 
9. The Final Decision shall be served on all parties and the Title IX Coordinator. If a case involves allegations of sex-based harassment, the Final Decision shall be served on the parties and the Title IX Coordinator simultaneously.
10. No decisions or recommendations arising from this appeal hearing and disciplinary procedure will be subject to grievance pursuant to any Collective Bargaining Agreement.

G. Final Administrative Appeal

The parties shall have the right to appeal the Final Decision from the Appellate Officer(s). The parties may do so by filing a written notice of final appeal with the Title IX Coordinator within ten (10) calendar days of service of the final decision. Failure to file a timely notice of final appeal constitutes a waiver of the right to administratively appeal and the decision shall be deemed final.

Either party may request a final appeal based on the following criteria:

1. Procedural irregularity that affected the outcome of the determination;
2. New evidence discovered that was not reasonably available at the time of the determination;
3. A conflict of interest from any Title IX personnel; or
4. Severity of sanctioning is not consistent with the violation.

The President of the College, or their designee, will determine whether the grounds for final appeal have merit, provide the rationale for this conclusion, and state whether the disciplinary sanction and condition(s) imposed in the Final Decision are affirmed, vacated, or amended, and if amended, set forth any new disciplinary sanction and/or condition(s).
The President or their designee shall serve the final decision on the parties and the Title IX Coordinator simultaneously.

The Final Decision will include information on the ability to judicially appeal to the Washington Superior Courts, pursuant to applicable provisions of RCW 34.05, including but not limited to the timelines set forth in RCW 34.05.542.

Appendix C: Pregnancy and Related Conditions

The Evergreen State College has a responsibility to prevent sex discrimination and ensure equal access to Evergreen’s educational programs and activities. This supplemental policy in the Title IX Policy and Procedures prohibits discrimination against any student, employee, applicant for employment, or anyone who was participating or attempting to participate in Evergreen’s educational program or activity (collectively Evergreen Community Members) based on their current, potential, or past pregnancy or related conditions.

A. Students

1. Responsibility to Inform Students. Evergreen has a responsibility to promptly and effectively prevent and respond to sex discrimination, including discrimination on the basis of pregnancy or related conditions. When a student informs an Evergreen employee, including confidential employees of the student’s pregnancy or related conditions, the employee must:
   1. Promptly provide the student, verbally or in writing, the Title IX Coordinator’s contact information and 
   2. Inform that student that the Title IX Coordinator can coordinate specific actions to prevent sex discrimination and ensure the student’s equal access to Evergreen’s educational programs and activities.
2. If the employee reasonably believes that the Title IX Coordinator has already been notified of a student’s pregnancy or related condition, they are relieved of their responsibility to inform in this instance. Absent information about conduct that reasonably may constitute sex discrimination, employees should not directly inform the Title IX Coordinator of a student’s pregnancy or related conditions. No Evergreen employee shall approach a student unprompted and ask about their pregnancy or related condition or make assumptions about a student’s needs or medical status.
   
   Nothing under this Title IX Policy and Procedure obligates a student to seek reasonable modifications for their pregnancy or related conditions after receiving the Title IX Coordinator’s information, nor does it obligate the student to accept offered reasonable modifications.
2. Title IX Coordinator’s Responsibility to Act. When a student informs the Title IX Coordinator of their pregnancy or related condition, the Title IX Coordinator will provide the student with information about Evergreen’s Title IX Policy and Procedure, including information about requesting and receiving reasonable modifications.

B. Reasonable Modifications

1. Reasonable modifications are defined as changes to Evergreen’s policies, practices or procedures as necessary to prevent sex discrimination and ensure equal access to Evergreen’s educational program and activity for a student and/or employee experiencing pregnancy or related conditions. Reasonable modifications are based on the individual’s needs and are determined in consultation with the individual. A modification that Evergreen can demonstrate would fundamentally alter the nature of its educational program or activity is not a reasonable modification. Reasonable modifications may include, but are not limited to:
   1. Breaks during class to express breast milk, breastfeed, or attend to health needs associated with pregnancy or related conditions, including eating, drinking or using the restroom;
   2. Intermittent absences to attend medical appointments;
   3. Access to online or homebound education;
   4. Changes in schedule or course sequence;
   5. Extensions of time for coursework and rescheduling of tests and examinations;
   6. Allowing a student to sit or stand, or carry or keep water nearby;
   7. Counseling; 
   8. Changes in physical space or supplies (for example: access to a larger desk or a footrest);
   9. Elevator access;
   10. Voluntary leave of absence; or
   11. Other changes to policies, practices or procedures.
2. At the student’s request, the Title IX Coordinator will work with the student to identify reasonable modifications to any policy, practice, or procedure necessary to prevent sex discrimination and to ensure equal access to Evergreen’s educational program and activity based on the student’s individualized need. It shall be the responsibility of Evergreen to demonstrate if a particular modification would be a fundamental alteration, and to consult with the student to identify alternative reasonable modifications.
3. During this process, the Title IX Coordinator shall not inquire about the specific circumstances surrounding a student’s pregnancy or related conditions and will maintain the student’s privacy at all times unless reasonably necessary to ensure reasonable modifications are implemented promptly and effectively.
4. Nothing in this policy precludes a student from participating in any part of an educational program or activity due to pregnancy or related conditions, including athletics and other extracurricular activities. Evergreen does not engage in prohibited discrimination when it allows a student, based on pregnancy or related conditions, to voluntarily participate in a separate portion of its educational program or activity, e.g. allowing a pregnant student who is confined to bed rest to access an in-person course online, provided that Evergreen ensures that the separate portion is comparable to that offered to students who are not pregnant or have related conditions.
5. A student can voluntarily take a leave of absence from Evergreen’s educational programs and activities to cover, at minimum, the period of time deemed medically necessary by the student’s licensed healthcare provider. Students who elect to take a voluntary leave of absence in relation to pregnancy or a related condition will be reinstated to the same extracurricular status upon returning from leave, unless exact reinstatement would not be administratively possible or practicable under the circumstances.

C. Appeal of Reasonable Modifications

A student has a right to appeal any reasonable modification to an impartial reviewer in accordance with the following procedure:

1. If a student becomes dissatisfied with their reasonable modifications or undergoes a change of circumstances that warrants revisions to their reasonable modifications, the student may submit a request to revise their reasonable modifications to the Title IX Coordinator.
2. The Title IX Coordinator will respond to such a request within 10 calendar days.
3. If the student disagrees with the Title IX Coordinator’s decision, they may submit a written appeal to the Dean of Students within 10 calendar days of receiving the Title IX Coordinator’s decision. 
4. Review of the appeal shall be performed by an impartial employee with authority to modify or reverse the Title IX Coordinator’s decision to provide, deny, modify or terminate reasonable modifications applicable to the student seeking review. Challenged reasonable modifications will be reviewed to determine whether they are meeting the purposes of preventing Sex Discrimination and ensuring equal access to Evergreen’s educational program and activities.

D. Supporting Documentation

Evergreen may, in certain instances, ask a student seeking reasonable modifications to produce supporting documentation to validate their pregnancy or pregnancy related condition. Evergreen will NOT require supporting documentation to validate a student’s pregnancy or related condition if:

1. A student’s need for a specific modification is obvious;
2. If the student has previously provided sufficient supporting documentation;
3. When the reasonable modification because of pregnancy or related conditions at issue is allowing a student to carry or keep water nearby and drink, use a bigger desk, sit or stand, or take breaks to eat, drink and use the restroom;
4. When the student has lactation needs; or
5. When the specific modification is available to students for reasons other than pregnancy or related conditions without submitting supporting documents.

In addition, Evergreen will not require certification from a healthcare provider or any other person to determine if a student who is pregnant or has related conditions is physically able to participate in a class, program, or extracurricular activity unless:

1. The certified level of physical ability or health is necessary for participation in the class, program, or extracurricular activity;
2. Evergreen requires such certification of all students participating in the class, program, or extracurricular activity; and
3. The information obtained is not used as a basis for discrimination prohibited by this policy.        

E. Employees

1. Under Title IX, Evergreen treats all employee’s pregnancy or related conditions as it does any other temporary medical conditions for all job-related purposes, including commencement, duration and extensions of leave, payment of disability income, accrual of seniority and any other benefit of service, and reinstatement, and under any fringe benefit offered to employees by virtue of employment. Employees who are pregnant or experiencing related conditions have the right to take leave, including voluntary medical leave, as outlined in Evergreen's Family and Medical Leave Act Policy Statement and respective collective bargaining agreements.
2. Under the Pregnant Workers Fairness Act (PWFA) and Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), Evergreen offers reasonable workplace modifications for employees experiencing pregnancy, childbirth, or related medical conditions. Evergreen will always provide the following reasonable modifications to employees experiencing pregnancy or related conditions, as needed, without requesting written certification from a healthcare professional:
   1. Providing frequent, longer, or flexible restroom breaks;
   2. Modifying a no food or drink policy;
   3. Providing seating or allowing the employee to sit more frequently;
   4. Refraining from lifting more than 17 pounds; and
   5. Providing reasonable break time for an employee to express breast milk for two years after the child’s birth each time the employee has need to express the milk and providing a clean and private location, other than a bathroom, which may be used by the employee to express breast milk.
3. Evergreen may provide other reasonable modifications, some of which may require written certification from a healthcare professional, which may include but are not restricted to:
   1. Job restructuring, including modifying a work schedule, job reassignment, changing a workstation, or providing equipment;
   2. Providing a temporary transfer to a less strenuous or hazardous position;
   3. Scheduling flexibility for prenatal visits; and
   4. Providing any further reasonable modification the employee may need.
4. Under the PUMP Act, Evergreen is not required to compensate an employee receiving reasonable break time for expressing breast milk or any work time spent for such purpose. However, as the time it takes to express breast milk is highly individualized, employees are encouraged to work with the Title IX Coordinator to ensure they have the flexibility to express breast milk as necessary.
5. Employees who are enrolled in Evergreen classes and programs are eligible to receive reasonable modifications as outlined in the student section of this Policy in order to sufficiently allow the employee to continue their educational progress as a student.
6. Evergreen will not retaliate against employees affected by pregnancy or related conditions who request one of these modifications, or deny them employment opportunities if they are otherwise qualified, or require them to take a leave if an alternative is available. Additionally, pregnant employees with a pregnancy-related disability may have rights in addition to those listed here.

F. Lactation Space

Evergreen has designated lactation spaces on campus that are not a bathroom, which may be used by any person on campus for pumping or breastfeeding as needed, regardless of a person’s gender identity or gender expression. Any designated lactation spaces will be kept clean, will be private and accessible, and available for use whenever the building is open for use.

While there are lactations spaces available for use, Evergreen recognizes that in Washington State, breastfeeding is permitted in any public place. Breastfeeding is not considered “indecent exposure,” and no one may stop another person from breastfeeding, require they cover themselves, move, or leave a public premise because they are breastfeeding. The decision of where to pump or breastfeed is at the person’s discretion.

G. Reporting Policy Violations

If an Evergreen community member notifies Evergreen of a failure to implement a reasonable accommodation or make a lactation space available, Evergreen will promptly and effectively take additional steps to comply with their Title IX obligations to ensure that it’s educational program and activity is free from discrimination on the basis of sex, including the basis of pregnancy or related conditions. If an Evergreen community member files a complaint regarding the failure to implement a reasonable modification for pregnancy or a related condition or to make a lactation space available, this will constitute a report of sex discrimination, and the investigation procedure outlined in this policy will be initiated.

To report violations of this Policy, contact Evergreen’s Title IX Coordinator at: titleixcoordinator@evergreen.edu; (360) 867-5224; Evans Hall 3009.