Formal complaints asserted against staff members under the University’s Discrimination and Harassment Policy alleging violations of Title IX are overseen by the Gender Equity and Title IX Compliance Office (“Office”). The processes described below are designed to comply with federal regulations and to provide for equitable investigation, hearing and resolution of such complaints.
1. These processes apply to formal complaints that a staff member has engaged in conduct prohibited by Title IX (“Prohibited Conduct”), defined as conduct on the basis of sex that occurs in an “education program or activity” against a person in the United States, and that satisfies one or more of the following:
a. A University employee conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;
b. Unwelcome conduct by an employee determined by a reasonable person to be so severe, pervasive, and objectively offensive that it denies a person equal educational access; and/or
c. Any instance of the following conduct, as defined by the Clery Act: sexual assault, stalking, dating violence, or domestic violence.
To constitute a “Formal Complaint,” allegations must be submitted to the Office in the manner described below. An “education program activity” includes locations, events, or circumstances over which the University exercises substantial control over both the respondent staff member and the context in which the Prohibited Conduct occurs, and also includes any building owned or controlled by a student organization that is officially recognized by the University.
2. This process will apply to Formal Complaints involving Prohibited Conduct that are submitted to the Office on or after August 14, 2020. Complaints of behavior that do not constitute Prohibited Conduct will be reviewed through other applicable University processes.
Filing a Complaint
3. To file a Formal Complaint of Prohibited Conduct against a staff member (“Respondent”), individual (“Complainant”) must submit to the Office a written, signed complaint setting forth allegations of Prohibited Conduct and a request that the University investigate the complaint. The Formal Complaint must include all alleged Prohibited Conduct by the Respondent against the Complainant; any subsequent complaint by the Complainant alleging Prohibited Conduct against the Respondent that could have been asserted in a prior complaint may be barred.
4. The Office will notify all parties of the Formal Complaint and conduct a preliminary review to determine whether the conduct alleged constitutes Prohibited Conduct. If necessary, the Office may seek additional information from the Complainant or Respondent. If the Formal Complaint does not allege Prohibited Conduct, the Office shall dismiss it and notify the parties. The Office may refer the Formal Complaint for investigation through other University processes, including the Discrimination Formal Complaint Process. Whether the Formal Complaint alleges Prohibited Conduct, or other circumstances exist warranting dismissal, is a determination made solely by the Office. The Office’s decision to dismiss the Formal Complaint may be appealed, as further described below.
5. If the Formal Complaint alleges Prohibited Conduct, the Office will issue a Notice of Complaint providing information about the allegations and processes that will be followed.
6. Parties may engage an Advisor of their choice to accompany them to any related meeting or proceeding conducted under these processes. An Advisor, who may be (but is not required to be) an attorney, is a person selected by a party to assist them during the investigation, pre-hearing conference, and/or hearing within the limitations specified below.
7. If a party intends to be accompanied by an Advisor to participate in proceedings, they must notify the Office and provide the Advisor’s name, telephone number and email address at least 10 calendar days before the pre-hearing conference.
8. A party must engage an Advisor to question the other party and witnesses at the hearing. If a party does not have an Advisor, the University will choose and provide without charge an Advisor of its choice to attend the pre-hearing conference, to question the other party and witnesses at the hearing, and to engage in up to eight hours of preparation time to fulfill those obligations.
9. Except for the duties specifically set out herein, Advisors may not speak on behalf of a party during the proceedings, make statements or arguments to the Hearing Panel, or otherwise actively participate in the proceedings. Advisors may not contact the Hearing Panel members. Failure to abide by these restrictions and the Rules of Decorum may, at the Hearing Chair’s discretion, result in exclusion from the process.
10. Any party or witness may also be accompanied by a support person of their choice at any meeting or interview throughout the investigation process. The support person may not take an active role in any part of the process and may not serve as a witness or a party to the same incident in the same pending matter.
11. Support persons may not contact the Investigator or any member of the Hearing Panel while the complaint is pending. Support people who do not abide by these guidelines and the rules of decorum may be excluded from the process.
Investigation and Report
12. If a Notice of Complaint is issued, the Office will assign an Investigator to investigate the allegations of the Formal Complaint. The Investigator may interview and obtain documents from the parties and other witnesses.
13. After completing the preliminary investigation, the Investigator will provide all parties an opportunity to inspect and review the evidence obtained as part of the investigation that is directly related to the Formal Complaint. The parties may, within 10 calendar days after that review, submit a written statement on the evidence to the Investigator for consideration prior to the Investigator’s completion of an investigation report.
14. The Investigator will prepare an investigation report. The investigation report will describe the relevant facts gathered during the course of the investigation, and will contain summaries of all interviews conducted by the Investigator, and any written statements and other relevant evidence provided to the Investigator by parties or witnesses. It will not set forth any conclusion or opinion as to whether the evidence establishes Prohibited Conduct.
15. The Investigator will provide the investigation report, upon completion, to the Office. The Office will conduct an administrative review of the investigation report to address compliance with this process and completeness. The Office may request of the Investigator clarifications, follow up, and/or additional investigation. When any such follow-up is complete, at least 10 calendar days prior to the pre-hearing conference the Office will submit the investigation report to the parties and the Hearing Panel.
16. The Office will convene a three-member Hearing Panel to conduct a hearing on the Formal Complaint. One of the Hearing Panel members will be the Hearing Chair, who is appointed by the Office and trained to investigate complaints involving allegations of Prohibited Conduct. The Hearing Chair presides over the hearing and serves as a voting member of the Hearing Panel.
17. The other two Hearing Panel members will be appointed by the Office from the University’s Discrimination and Harassment Hearing Committee, a standing committee comprised of faculty, staff and students appointed by the Chancellor to two-year terms and trained to investigate complaints involving allegations of Prohibited Conduct. Those two members ordinarily will be selected based on the status of the parties (i.e., faculty member, staff member, student).
18. The Hearing Chair will hold a pre-hearing conference with the parties.
19. At the time it delivers the investigation report, the Office will provide to the parties the name and title of each member of the Hearing Panel. The Title IX Coordinator, investigator, and members of the Hearing Panel will be free of any material conflicts of interest or material bias. Any party who believes one or more of these University officials has a material conflict of interest or material bias must raise the concern in their written response to the investigation report so that the University may evaluate the concern and find a substitute, if appropriate.
20. At least seven calendar days prior to the pre-hearing conference, parties may submit to the Office a written response to the investigation report, which will be distributed to the Hearing Panel and other party.
21. To facilitate efficiency during the hearing, parties are strongly encouraged to submit to the Hearing Chair, at least two calendar days prior to the pre-hearing conference, those questions they intend to ask of another party or witness.
22. At the pre-hearing conference, the parties shall be prepared to discuss the witnesses and evidence they intend to present at the hearing, all evidentiary issues they anticipate at the hearing, and any other matters that may require resolution by the Hearing Chair. The Hearing Chair may, in their sole discretion, exclude from the hearing evidence or questions (or particular topics) for the parties and witnesses based on relevance, including on the basis that they are repetitive or abusive. The Hearing Chair will ordinarily address proposed questions to be posed to a party or witness outside the presence of other parties or in writing directed to the requesting party only.
23. Following the pre-hearing conference, and prior to the hearing, the parties will be provided a Pre-Hearing Order that identifies a list of approved hearing witnesses, documents and other evidence for use during the hearing. The Hearing Chair, at their sole discretion, may also memorialize any other rulings made during the pre-hearing conference, including the relevance of proposed questions (or topics) to be posed to another party or witness. Such rulings in the Pre-Hearing Order are subject to reconsideration during the hearing and, based on circumstances presented, may be revised by the Hearing Chair.
24. The Office, in consultation with the Hearing Chair, will set the time and the location or manner of the hearing. The hearing may be conducted in person or remotely.
25. Only the following persons may be present during the hearing: the Hearing Panel; the parties and their Advisors and support persons; witnesses and their support persons; a member of the Office; and a member of the Office of the Vice Chancellor and General Counsel (as advisor to the Hearing Panel). Witnesses and their support persons may be present only when being questioned, unless the Hearing Chair authorizes them to be present for another portion of the hearing.
26. All evidence gathered during the investigation, regardless of whether it is identified in the Pre-Hearing Order, will be made available for the parties’ inspection and review during the hearing. Subject to the Hearing Chair’s determination of relevance, all parties will have equal opportunity to refer to such evidence during the hearing, including for purposes of an Advisor questioning another party.
27. The Hearing Chair may, on their own initiative, direct any University employee or student to appear as a witness at the hearing.
28. The Hearing Chair may recess a hearing if they conclude that the Panel requires additional evidence or information.
29. The procedure at the hearing is as follows:
a. The Hearing Chair will call for questioning the Complainant and any relevant witnesses provided by the Complainant. The Hearing Panel will first question the Complainant. The Respondent’s Advisor may then question the Complainant. The Hearing Panel, the Complainant’s Advisor and the Respondent’s Advisor, in that order, may question the Complainant’s witnesses.
b. The Hearing Chair will then call for questioning the Respondent and any relevant witnesses provided by the Respondent. The Hearing Panel will first question the Respondent. The Complainant’s Advisor may then question the Respondent. The Hearing Panel, the Respondent’s Advisor and the Complainant’s Advisor, in that order, may question the Respondent’s witnesses.
c. The Hearing Chair shall permit each party’s Advisor to ask the other party and witnesses relevant and approved questions and follow-up questions, including those challenging credibility. Such questioning may be conducted only by Advisors, and never by a party personally. Before any party or witness may answer a question posed by an Advisor, the Hearing Chair shall determine whether the question is relevant and explain any decision to exclude it.
d. After questions have been put to a party or witness by the Hearing Panel and the parties’ Advisors, if a party believes that there are follow-up questions that should be asked of the other party or witnesses, the Advisor may advise the Hearing Chair that they have additional questions. The Hearing Chair, at their sole discretion, may allow such additional questions.
e. The Hearing Panel may ask questions of any party or witness at any time during the hearing, and may also recall witnesses and/or direct that additional witnesses be called to testify.
f. In reaching its decision, the Hearing Panel may not draw any inferences based solely on a party’s or witness’s absence from the hearing or refusal to answer any questions at the hearing.
g. Rules of procedure applicable in court proceedings, including formal rules of evidence, are not applicable to the hearing.
h. If a hearing is conducted in person, the Hearing Chair in their discretion may decide that the parties will be seated in separate rooms, with technology enabling the participants simultaneously to see and hear each other.
30. Only relevant evidence that tends to prove or disprove the allegations shall be allowed at the hearing and considered by the Hearing Panel. Except in unusual circumstances, prior conduct of the parties unrelated to the Formal Complaint before the Hearing Panel shall not be considered in reaching a decision. Questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant and will be excluded, unless such questions and evidence about the Complainant’s prior sexual behavior are offered (a) to prove that someone other than the Respondent committed the conduct alleged by the Complainant; or (b) concern specific incidents of the Complainant’s sexual behavior with respect to the Respondent and are offered to prove consent.
31. The Hearing Panel shall determine whether the evidence establishes that the Respondent more likely than not engaged in Prohibited Conduct. The Hearing Panel will issue to the Office a written decision, which outlines the basis for its decision. A majority vote of the members of the Hearing Panel shall be required for a decision.
32. If the Hearing Panel does not determine it is more likely than not that the Respondent engaged in Prohibited Conduct, the Respondent shall be found not responsible.
33. If the Hearing Panel determines that it is more likely than not that the Respondent engaged in Prohibited Conduct, the Hearing Panel will draft a written decision that includes (i) the identification of the allegations constituting Prohibited Conduct; (ii) a description of the procedural steps taken in the investigation, including a description of the methods used to gather evidence and the hearings held; (iii) findings of fact supporting the Hearing Panel’s determination; (iv) conclusions regarding the allegations of the Formal Complaint; and (v) a statement of, and rationale for, the result as to each allegation.
34. If the Panel determines that it is more likely than not that the Respondent engaged in Prohibited Conduct, the Office will notify the applicable administrative officer for determination of the appropriate sanction. The applicable administrative officer is as follows: for central fiscal unit-based Respondents, the Vice Chancellor in charge of their unit; for Danforth Campus school-based Respondents, the Dean of their school; and for School of Medicine-based Respondents, the head of their department.
35. Sanctions may include among other things reprimand, reassignment, suspension, monetary penalty, and/or initiation of tenure revocation or termination for cause proceedings.
36. The written decision including sanctions, if applicable, will then be forwarded to the parties. The Panel and, if applicable, the administrative officer determining sanctions, will endeavor to issue the decision as soon as reasonably practicable.
37. Within seven calendar days after the Office dismisses a complaint or the parties are provided the final decision (including the decision regarding sanctions), the parties may appeal the dismissal of the complaint, the Panel’s decision and, if applicable, the administrative officer’s sanction decision, to the Vice Chancellor for Human Resources.
38. The scope of review on appeal shall be limited to determining whether: (i) procedural irregularity materially affected the outcome of the matter; (ii) there exists new evidence that was not reasonably available at the time the determination regarding responsibility or dismissal of the Formal Complaint was made, that could affect the outcome of the matter; (iii) the Office, Investigator, or Hearing Panel members had a conflict of interest or bias for or against complainants or respondents generally or the Complainant or Respondent that affected the outcome of the matter; and/or (iv) the sanctions imposed are inappropriate.
39. To initiate the appeal process, a party must submit a written appeal to the Office explaining the basis of and support for the appeal. The Office will provide a copy of the appeal to the other party. Within seven calendar days of receipt of the appeal, the other party may submit a written response to the appeal to the Office, which distribute it to the appealing party. The Office will provide the appeal submissions to the Vice Chancellor for Human Resources.
40. The Vice Chancellor for Human Resources will review the written submissions and consult with, as appropriate, the Executive Vice Chancellor and Chief Administrative Officer, the Executive Vice Chancellor for Medical Affairs/Dean of the School of Medicine, and/or the Provost (or their designees).
41. Following such consultation, the Vice Chancellor for Human Resources will issue in writing, with copies to the parties and Office, the University’s decision on appeal. That decision shall be final and unreviewable.
42. The University will endeavor to issue the decision on appeal as soon as reasonably practicable.
43. During the investigation and hearing, there shall be a presumption that the Respondent did not engage in the alleged Prohibited Conduct.
44. All written submissions required by these processes shall not exceed ten single-spaced pages (excluding any evidentiary materials), using at least 12-point font and one-inch margins. All written submissions required by these processes must be prepared personally by the party and must include an attestation to that effect.
45. The University will endeavor to conclude the investigation and hearing process within 120 calendar days and the appeals process within 30 calendar days of the parties’ final submissions. The timeframes and deadlines set out these processes may be extended for good cause shown, with written notice to the parties explaining the delay or extension and the reasons for such action. Good cause may include considerations such as the absence of a party, a party’s Advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities. Proceedings will not be unduly delayed by the unavailability of a particular Advisor.
46. In implementing these processes in any particular case, reasonable modifications of or departures from the processes may be made by the University in an effort to ensure a fair and efficient process. Such modifications may include, but are not limited to, adjustment of deadlines or rescheduling of interviews, conferences or hearings.
47. If a Complainant chooses to file a criminal report with the Washington University Police Department or other law enforcement agency with respect to the same or related conduct alleged in the Formal Complaint, they may simultaneously pursue the criminal and Formal Complaint. Ordinarily the University will not delay these proceedings if criminal charges are filed, but may in its discretion postpone them while criminal proceedings are pending.
48. At any point before, during, or after the proceedings described above, the University may determine that supportive measures are necessary and appropriate to prevent and/or respond to allegations of Prohibited Conduct. Depending on the specific nature of the allegation, such measures may include but are not limited to: implementation of a no-contact order or temporary leave of absence, temporary changes to job or course assignments, medical or counseling services, and additional training and education. Such measures for parties and witnesses will be implemented in accordance with applicable University policies.
49. Ordinarily a respondent shall not be subject to more than one Formal Complaint and hearing concerning the same act or series of related acts. The Office may in its discretion consolidate multiple related complaints into a single proceeding. Nothing in this provision shall prohibit a separate complaint or hearing arising from alleged acts that take place or are discovered after proceedings on an earlier complaint have been completed.
50. No party, Advisor or witness may record any part of any interview, conference, hearing or other proceeding. The University will create a verbatim record (which may be in the form of an audio recording or transcript) of the pre-hearing conference and the hearing. Hearing Panel deliberations shall not be recorded. All recordings shall remain the property of the University. The recordings may be made available to the parties for review upon written request. If a party wishes to listen to any portion of the recordings, they may schedule an appointment with the Office to listen to the recording. While doing so, they may take notes but may not otherwise create or retain a copy of the recording in any way. Exceptions to this prohibition may be made following a written request, at the sole discretion of the Office.
51. Documents and other records pertaining to these proceedings ordinarily will be destroyed after a period of 10 years from the date of final disposition of a complaint. The University may provide records or information regarding the matter to other persons or entities in accordance with the law.
Retaliation and Protection of Rights
52. The University will not tolerate retaliation against persons who report Prohibited Conduct or against those who testify, assist, or participate in any investigation, proceeding, or hearing under these processes. In this context, retaliation means any action to intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or these processes, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this process.
53. The University seeks to protect the rights of all persons, including both Complainants and Respondents, to fair procedures. Allegations of Prohibited Conduct may have injurious and far-reaching effects on the education, careers and lives of those accused. Such allegations must be made in good faith and not out of malice. Knowingly making a false or frivolous complaint of Prohibited Conduct, whether in a formal or informal context, will be treated as a serious offense.