Non-Discrimination Policy and Procedure

I. Non-Discrimination Policy Statement  

The Evergreen State College is committed, as a matter of principle, and in conformance with federal and state laws, to prohibiting discrimination and to prohibiting behaviors, which, if repeated, could constitute discrimination. The College further recognizes its responsibility for investigation, resolution, implementation of corrective measures, and monitoring the educational environment and workplace to stop, remediate, and prevent discrimination.

The President of the Evergreen State College, as the delegate of the Board of Trustees, directs that all personnel and student-related transactions, and the operation of all College programs, activities and services, will not discriminate on the basis of race, color, national origin, religion, creed, sex, pregnancy, sexual orientation, gender identity and expression, genetic information, marital status, age, disability (perceived or actual, physical, mental or sensory) including use of trained service animal, military status, honorably discharged veteran, citizenship or immigration status, HIV/AIDS or Hepatitis C status, status as a breastfeeding mother, or actual or perceived status as a victim of domestic violence or any other legally protected status.

Harassment on any of the above-stated grounds is a form of prohibited discrimination. Reports of sexual harassment (including sexual misconduct) that rise to a level sufficient to invoke the college’s Title IX Policy and Procedure will be investigated and adjudicated through the process outlined in the Title IX Policy and Procedure: https://www.evergreen.edu/policy/titleix.

Inappropriate behavior based on a legally protected class status is unacceptable and may be cause for discipline even if it does not rise to the level of a policy violation or illegal discrimination. The college encourages community members to report conduct that could violate this policy and to cooperate with the college’s efforts to promptly address discrimination, harassment, and retaliation. Further, the college reserves the right to initiate an investigation where there is evidence that a violation of this policy may have occurred.

The college may choose not to wait for the conclusion of a criminal investigation or criminal proceeding to begin an investigation of allegations or concerns regarding discrimination.

This policy also prohibits retaliation for reporting possible violations of this policy, for cooperating with any related investigation, or for participating in a complaint investigation process. Complaints of retaliation will be considered independently, whether or not a complaint of discrimination is substantiated.

II. Legal Basis

The bases of the College’s Non-Discrimination Policy are found in several state and federal laws and their implementing regulations, including, but not limited to: Presidential Executive Orders 11246, as amended, and 11478; Title VI of the Civil Rights Act of 1964; Title VII of the Civil Rights Act of 1964, as amended, in 1972; Title IX of the Educational Amendments of 1972; Sections 503, 504 and 508 of the Rehabilitation Act of 1973; the Americans with Disabilities Act and ADA Amendment Act; the Age Discrimination Act of 1975; Lily Ledbetter Fair Pay Act of 2009; Vietnam-era Veterans Readjustment Assistant Act of 1974, as amended; Uniformed Services Employment and Reemployment Rights Act  the Violence Against Women Act of 1994; Title II of the Genetic Information Act of 2008; Governor’s Executive Orders 93-07; Campus Sexual Violence Act, Chapter 28B.112 RCW; and Washington State’s Law Against Discrimination, Chapter 49.60 RCW; and Domestic Violence Leave Act, Chapter 49.76 RCW.

III. Guidance, Information and Resources

For Non-discrimination policy guidance, clarification, advice, or referral, please contact either the Equal Opportunity and Affirmative Action Officer (via email to ray.rector@evergreen.edu or by phone at (564) 223-9677) or the Civil Rights Officer (via email to mastinl@evergreen.edu or by phone at (360) 867-5371).

The Affirmative Action and Equal Opportunity Officer has overall responsibility for assuring the college’s compliance with nondiscrimination laws and regulations, and receives complaints against staff and faculty, and also receives requests for clarification as to what actions may constitute discriminatory behavior under this policy.

Further, while complaints against students are investigated by the Office of Student Rights and Responsibilities, the Affirmative Action and Equal Opportunity Office will coordinate with supervisors to ensure employees are supported through the complaint investigation process including the provision of resources, guidance, and subsequent remedial measures as necessary.

See Section V. below for detailed information on the college’s complaint resolution process.

IV. Definitions

• Complainant:  Employee(s), applicant(s), student(s), or visitors(s) of the College who alleges that they have been subjected to discrimination or harassment due to their membership in a protected class.
   
• Complaint:  A description of facts that allege violation of the College’s Non-discrimination Policy.
   
• Consent:  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.
   
• Discrimination:  Unfavorable treatment of a person based on that person’s membership or perceived membership in a legally protected class that excludes an individual from participation, denies the individual the benefits of, treats the individual differently or otherwise adversely affects a term or condition of an individual’s employment, education, living environment or participation in a college program or activity.
   
• Disparate impact: A form of discrimination that occurs when a facially neutral practice unintentionally has a significant discriminatory impact on members of a protected class and is otherwise unjustified by a legitimate rationale.
   
• Disparate treatment: A form of intentional discrimination constituting unfavorable treatment or singling out of an individual based on their status as a member of a protected class.
   
• Failure to accommodate a disability: A form of discrimination that may occur when an individual with a qualifying disability requests an accommodation(s) under the college’s Students with Disabilities Policy, the Reasonable Accommodation in Employment Policy, or the public accommodation provision set out in RCW 49.60.030(1)(b) and, absent an undue burden or fundamental alteration, the accommodation is not provided.
   
• Harassment:  A form of discrimination consisting of physical or verbal conduct that denigrates or shows hostility toward an individual because of their membership in a protected class or their perceived membership in a protected class.  Harassment occurs when the conduct is sufficiently severe, persistent, or pervasive that it has the effect of altering the terms or conditions of employment or substantially limiting the ability of a student to participate in or benefit from the College’s educational, athletic, or social programs, or use of student housing.
  
  Examples of conduct that could rise to the level of discriminatory harassment include but are not limited to the following:
  
         Epithets, "jokes," ridicule, mockery or other offensive or derogatory conduct focused upon an individual's membership in a protected class.
  
         Verbal or physical threats of violence or physical contact directed towards an individual based upon their membership in a protected class.
  
         Making, posting, emailing, texting, or otherwise circulating demeaning or offensive pictures, cartoons, graffiti, notes or other materials that relate to race, ethnic origin, gender or any other protected class.
  
  Petty slights, annoyances, offensive utterances, and isolated incidents (unless extremely serious) typically do not qualify as harassment.
   
• Protected class status:  Status of persons who are members of a class that is protected under state or federal laws that prohibit discrimination. (See legally protected classes listed above in Policy Statement.)
   
• Resolution:  The means by which the complaint is finally addressed.
   
• Respondent:  person or persons who are members of the campus community about whom an allegation of discrimination or harassment has been made.
   
• Retaliation:  Refers to adverse actions taken against an individual by a member of the college community for participation in a protected activity, such as participating in a discrimination complaint investigation.
   
• Sexual (Gender-based) Harassment:  A form of discrimination consisting of unwelcome, sexual advances, requests for sexual favors, or other gender-based verbal, written, electronic and/or physical conduct. It can involve persons of the same or differing sexes, sexual orientations, gender identities or expression. Sexual harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person's gender.  Such conduct violates this policy when it constitutes either or both forms of sexual harassment defined below:
   
  • Hostile Environment Sexual Harassment: This form of sexual harassment occurs when conduct (by anyone involved in a College program or activity, e.g., administrators, faculty members, staff members, students, contractors, vendor, volunteers and campus visitors) is sufficiently severe, persistent, or pervasive and objectively offensive that it has the effect of unreasonably  interfering with an individual’s employment, academic status, or denying or limiting the individual’s ability to participate in or to receive the educational benefits, services or opportunities of the College. (i.e. altering the terms or conditions of employment or substantially limiting the ability of a student to participate in or benefit from the College’s educational, athletic or social programs, or access to student housing).
     
  • Quid Pro Quo Sexual Harassment:  This form of sexual harassment occurs when an individual in a position of real or perceived authority (generally, agents or employees with some authority from the college), implicitly or explicitly conditions the ability to participate in or to receive the college’s educational or employment opportunities, benefits or services, upon the recipient’s submission to unwelcome physical, verbal, or written conduct of a sexual nature.  (i.e. where submission to, or rejection of, the conduct is used as a factor in decisions that affect tangible aspects of the individual’s employment, academic status, or ability to participate in or to receive the educational benefits, services or opportunities of the College.)

Examples of conduct that may qualify as sexual harassment include:

• Persistent comments or questions of a sexual nature.
• A supervisor who gives an employee a raise in exchange for submitting to sexual advances.
• An instructor who promises a student a better grade in exchange for sexual favors.
• Sexually explicit statements, questions, jokes, or anecdotes whether directed at or observed by a member of the college community.
• Unwelcome touching, patting, hugging, kissing, or brushing against an individual's body.
• Remarks of a sexual or gender-based nature about an individual's clothing, body, or speculations about previous sexual experiences.
• Persistent, unwanted attempts to change a professional relationship to an amorous relationship.
• Direct or indirect propositions for sexual activity.
• Unwelcome letters, emails, texts, telephone calls, or other communications referring to or depicting sexual or romantic activities or material.

• Sexual Assault:  This is a form of sexual harassment discrimination that includes:
    
  • 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.
     
  • Nonconsensual sexual contact:  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.
     
  • 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.
     
  • Statutory Rape:  Consensual intercourse between a person who is eighteen (18) years of age or older, and a person who is under the age of sixteen (16)
     
  • Domestic violence:  Physical violence, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, or stalking committed by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of 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.
     
  • 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:
    • The length of the relationship;
    • The type of relationship; and
    • The frequency of interaction between the persons involved in the relationship
       
  • Stalking:  Engaging in a course of conduct directed at a specific person that would cause a reasonable person to (1) fear for their safety or the safety of others; or (2) suffer substantial emotional distress.
     
• Witness: A witness is someone who has first-hand knowledge of an event, or circumstances surrounding or related to the event. Witnesses may report potential violations of this policy without filing a formal complaint. During a discrimination complaint investigation, the investigator will attempt to identify and interview witnesses in order to obtain additional information about a reported issue.

V. Complaint and Resolution Procedures

A. Filing a Complaint

An aggrieved individual may seek resolution of their complaint against an employee through the Affirmative Action and Equal Opportunity Office and seek resolution of their complaint against a student through the Code of Student Rights and Responsibilities (Code).

 An individual within the Evergreen Community may file a complaint against an employee, student, contractor, vendor or visiting members of the public if they believe they have experienced or witnessed discrimination or harassment based on a legally protected status, or experienced retaliation for participating as a complainant, respondent, or witness in a complaint resolution process.

• Complaints pertaining to employees, contractors, and vendors are addressed through the Affirmative Action and Equal Opportunity Office.
• Complaints pertaining to students are addressed through the Office of Student Rights and Responsibilities.
• Complaints of an immediate nature regarding members of the public, including concerns about safety, should be directed to Police Services. Other complaints regarding members of the public may be addressed through the Affirmative Action and Equal Opportunity Office.

Individuals who wish to engage in the processes outlined must provide accurate, detailed information, including a specific allegation of protected class discrimination.  Written statements are highly encouraged. Complaints filed under this policy against employees generally must be filed within 300 days of the last act of alleged discrimination. The Affirmative Action and Equal Opportunity Officer may use discretion when deciding whether to accept complaints beyond the 300-day requirement, especially in cases where egregious conduct is reported.  There are no time limits for complaints filed against students under this policy, the Title IX Policy and Procedure, or the Code.

If the reported conduct does not fall under the jurisdiction of this policy (or the Code of Students Rights and Responsibilities), the Affirmative Action and Equal Opportunity Officer or the Office of Student Rights and Responsibilities or designees will refer the individual to other appropriate college or external resources.

Expectation of truthfulness:  It is the responsibility of students and employees involved in the complaint resolution process to provide truthful and complete information.  If, in the course of an investigation, the investigator finds that false accusations or false statements were knowingly made, individuals found responsible will be subject to sanctions as outlined below in Section VI of this policy.

B.   Complaints Regarding Employees

An individual who believes they have experienced discrimination or harassment by an employee, or retaliation for participating in a complaint resolution process, is urged to report their experiences by requesting an intake appointment with the Equal Opportunity and Affirmative Action Officer (via email to ray.rector@evergreen.edu or by phone at (564) 223-9677) or the Civil Rights Officer (via email to mastinl@evergreen.edu or by phone at (360) 867-5371).

Reports may also be made in writing via email to ray.rector@evergreen.edu or mastinl@evergreen.edu or through the on-line Equal Opportunity Complaint Form available on the Affirmative Action and Equal Opportunity webpage: https://www.evergreen.edu/equalopportunity. Once a written complaint is received, the Equal Opportunity and Affirmative Action Officer will contact you to schedule an intake appointment.

During the initial intake appointment, the Affirmative Action and Equal Opportunity Officer will conduct a preliminary review of the allegations to determine if the reported conduct falls under the jurisdiction of the Non-discrimination Policy, and to determine whether a formal investigation, informal resolution process, or referral to another college official is warranted.

1. Informal Resolution:  Informal resolution and consultative processes are highly desirable means of resolving problems at the lowest possible level within the college. An informal resolution process may be utilized at the discretion of the Affirmative Action and Equal Opportunity Officer or at the request of the complainant.  The goal of informal resolution is to resolve the matter without entering into a formal complaint process. Either party may propose any of these options, and these are not steps that need to be pursued sequentially. Informal Resolution may not be an option if allegations against an employee by a student fall within the jurisdiction of the Title IX Policy.

         a. Resolution Conference: The first step in resolution will generally be for the parties to consider whether a facilitated resolution is an appropriate alternative to a formal complaint investigation. As an alternative to a formal investigation, the Affirmative Action & Equal Opportunity Officer may contact either the complainant or respondent or both parties to schedule a facilitated resolution conference for the purpose of discussing the complaint, the response, clarifying issues, and attempting resolution.

         b. Mediation:  An individual may seek the assistance of the Affirmative Action & Equal Opportunity Officer to arrange for a qualified mediator, acceptable to both parties, to work with the parties and provide assistance in reaching a mutually acceptable resolution. Mediators work with both parties and provide assistance in reaching a mutually acceptable resolution. Records of the mediation itself will not be kept by the mediator(s) except for documents signed by both parties agreeing to mediate in good faith and the final resolution document. Mediators may not become witnesses in any subsequent proceedings.

2. Formal Complaint Investigation: 

         a. Preliminary review of evidence: Once a complaint is received, the investigator will conduct a preliminary assessment which will include a meeting with the respondent and a review of evidence provided. If the Affirmative Action & Equal Opportunity Officer or their designee determines there is sufficient evidence to warrant a formal investigation, they will notify the complainant and respondent, and commence a formal investigation.  It shall be the responsibility of the Affirmative Action and Equal Opportunity Officer or designated investigator to solicit and compile information about the complaint either acting as the sole investigator or through an investigative team.

         b. Investigator:  Most complaints will be investigated by the Affirmative Action and Equal Opportunity Officer or a college Civil Rights Investigator. However, certain factors may warrant use of an independent investigator or investigative team.  This determination will be made by the Affirmative Action and Equal Opportunity Officer taking into account factors such as potential conflict of interest, complexity of the case, need for specialized expertise, or allocation of resources.

         c. Investigation: The investigation should be impartial, thorough, and completed promptly. Both the complainant and the respondent may choose a representative to participate in any interviews, may suggest witnesses to be interviewed, and may submit informational documents and/or statements.

The investigator may also solicit information and/or documentation from any appropriate individuals and will attempt to conduct interviews with witnesses and other parties at convenient times for the participation of parties and representatives.

To the extent authorized by law, the Affirmative Action and Equal Opportunity Officer has the discretion to terminate a formal investigation at any time should a complaint be rescinded or a resolution be reached before a finding is issued.

The investigation should be concluded within a reasonable time unless good cause is shown.  If the investigation is delayed, the investigator will notify the parties of the delay and provide an estimated time for completion.

         d. Substantiated finding:  After the investigation is completed, if the investigator determines by a preponderance of the evidence that the respondent violated the policy or policies, the investigator will notify each party of the finding(s) and offer to meet with the parties individually to review the finding(s)in detail.  The investigator will prepare a detailed investigative report summarizing the facts of the case. This report shall contain: (1) statement of allegation; (2) response to the allegation by the respondent; (3) statement of evidence; and (4) a conclusion as to whether the Non-Discrimination Policy (or other antidiscrimination policy) has been violated.   

The investigative report will be distributed by the Affirmative Action & Equal Opportunity Officer to the respondent-employee’s appointing authority and/or appropriate Vice President, the Provost (in the case of a faculty respondent), the Associate Vice President of Human Resource Services (in the case of a staff respondent), and, if appropriate, the Title IX Coordinator.  At this point, the case will progress to the post-investigation stage. A copy of the investigative report will be retained in the Affirmative Action and Equal Opportunity Office in accordance with the College’s retention schedule.

         e. Unsubstantiated finding:  If the investigator determines that the evidence does not support a finding of a policy violation by the respondent, the investigator will prepare a brief summary for the Affirmative Action and Equal Opportunity Office file.  The file will be retained according to the College’s retention schedule.  The investigator will notify each party of the findings and offer to meet with the parties individually to review the findings in detail.  At this point, informal resolution options remain available; however, the complainant’s internal investigative options are exhausted.

         f. College Retains Authority: The College retains the authority to discipline or take appropriate corrective action for any conduct that is deemed unacceptable or inappropriate, regardless of whether the conduct violates the Non-Discrimination Policy.  If the investigator determines that the respondent’s conduct did not rise to a level sufficient to violate the Non-Discrimination Policy, but nonetheless finds it warrants further attention, the Affirmative Action and Equal Opportunity Officer will refer the matter to the appropriate supervisory or administrative official.  For represented employees, discipline or corrective measures will be subject to applicable articles of the College’s collective bargaining agreements.

C. Complaints Regarding Students

An individual who believes they have experienced discrimination or harassment by a student or has experienced retaliation by a student for participating in a conduct process through the Office of Student Rights and Responsibilities is urged to use the complaint process provided through the Code. A complaint should be submitted as soon as possible after the event has taken place.

 Individuals wanting to initiate the complaint process should send an email to the Office of Student Rights and Responsibilities at studentconduct@evergreen.edu.

Employees who report workplace discrimination or harassment to the Office of Student Rights and Responsibilities will be referred to the Affirmative Action and Equal Opportunity Officer or Human Resource Services for resources and guidance as needed during the pendency of the student conduct investigation and review process.

A complaint may be submitted online via the Office of Student Rights & Responsibilities Complaint Form available on the Reporting Concerns webpage: https://www.evergreen.edu/care/reporting-concerns.

In addition to the Office of Student Rights & Responsibilities, a complaint may also be submitted to college officials who are able to take action including the Dean of Students, Title IX officials, residential life staff, and Police Services.

1. Initial Review of Complaint

Once a complaint is received, the Office of Student Rights and Responsibilities or designee assigns a student conduct official to review the complaint to determine jurisdiction and if there is clear information to indicate a possible violation of the Code in order to determine next steps.

This process usually involves a student conduct official meeting with the person who submitted the complaint (Complainant). The student conduct official will explain to the Complainant the process for addressing complaints under the Code, advise them of their rights and responsibilities, and review with the Complainant their complaint and the possible violation(s) of the Code (if any).

The student conduct official may then elect to initiate a conduct conference with the accused student (Respondent), attempt to gather additional information to make a determination, or close the complaint without any further action. If the complaint is closed without any further action by the student conduct official, the parties may be referred for additional resources.

Interim Measures: A student conduct official may institute interim measures prior to, or at any stage during, a student conduct process when the physical or mental safety of any member of the college community is deemed at risk due to behavior of the Respondent. Interim measures may include a college no contact order and/or Respondent loss of privileges. The senior college official or designee institutes temporary suspensions from the college, if deemed necessary (WAC-174-123-200 (2).

2. Initiating a Conduct Conference

A conduct conference is a meeting or a series of meetings, between a Respondent and a student conduct official. The student conduct official will explain to the Respondent the process for addressing complaints under the Code, advise the Respondent of their rights and responsibilities, and review with the Respondent the complaint and alleged violation(s) of the Code.

A Respondent will meet with the student conduct official for a conduct conference as directed in a written notice. The notice will briefly describe the allegations and the provision(s) of the Code the Respondent is alleged to have violated. At the conduct conference, the student conduct official will present the allegations to the Respondent and the Respondent will be afforded an opportunity to explain what occurred. If the Respondent fails to attend the conduct conference, a determination of responsibility and required resolution and sanction(s) may be determined in the Respondent's absence and/or a hold may be placed on their student account prohibiting course/program registration.

In addition to information sought from the Respondent regarding the allegations, the student conduct official may seek additional information from other persons with information relevant to the investigation of the complaint.

3. Complaint Resolution There are two types of complaint resolution processes available through the Code: An Agreement of Accountability or a Notice of Determination of Responsibility. If a discrimination complaint alleges Title IX Sexual Harassment, Non-Title IX Sexual Misconduct, or assault, the Notice of Determination process is used.

            a. Agreement of Accountability:

           The student conduct official will attempt to resolve a complaint informally using an agreement of accountability. If a complaint is not resolved using an agreement of accountability, the student conduct official will resolve the complaint by issuing a determination of responsibility and required resolution and sanction(s) as described in WAC 174-123-230(1).

           The student conduct official may work with any Respondent who acknowledges responsibility for engaging in prohibited conduct to identify the resolution and sanction(s). If an agreement is reached, the resolution and sanction(s) will be contained in a written agreement of accountability signed by both the Respondent and the student conduct official.

           A Respondent who enters into an agreement of accountability will comply with the resolution and sanction(s) set forth in the agreement and will have no further right of appeal under the Code. A Respondent's failure to comply with an agreement of accountability may be the basis for a separate violation of misconduct under the Code.

           A separate violation will be addressed using a conduct hold and/or initiating a conduct conference as described in WAC 172-123-210. If a conduct hold is imposed, it remains in effect until such time that the student satisfactorily completes the requirements of the agreement of accountability.

           b.      Notice of Determination of Responsibility:         

If a complaint alleges Title IX sexual harassment, Non-Title IX sexual misconduct, or assault, the Complainant is to be informed of the final determination and any required resolution and sanction(s) imposed against the Respondent.[1]

Either party (Complainant or Respondent) may appeal the final determination or the required resolution and sanction(s) in accordance with the rules and regulations contained within the Code.