SEXUAL HARASSMENT – EMPLOYEES AND APPLICANTS 6106
The Board of Trustees prohibits sexual harassment, as a form of sex discrimination, of district employees and job applicants. The Board also prohibits retaliatory behavior or action against district employees or other persons who complain, testify, or otherwise participate in the complaint process established pursuant to this policy and accompanying regulation. This policy shall apply to all district employees and, when applicable, to applicants, interns, and volunteers.
The district will not tolerate or condone any type of unlawful harassment. It is the policy of the district to provide a workplace and working environment in which harassment based on actual or perceived sex, sexual orientation, marital, family, or parenting status, gender, gender identity, gender expression, or any other legally protected characteristic, is not permitted. It shall be the responsibility of each administrator, manager, and supervisor to ensure the work environment is free of such harassment and that all employees are aware of the district’s policies and regulations regarding harassment.
Any district employee who engages or participates in sexual harassment or who aids, abets, incites, compels, or coerces another to commit sexual harassment against a district employee, job applicant, volunteer, intern, or student, is in violation of this policy and is subject to disciplinary action, up to and including dismissal. Employees are personally liable for any harassment perpetrated by them. Any district employee who has a sexual relationship with any student is subject to disciplinary action, up to and including, dismissal. In addition, criminal or civil charges may be brought against the alleged harasser; sexual harassment also may be considered a violation of law relating to child abuse.
The Superintendent or designee shall take all actions necessary to ensure the prevention, investigation, and correction of sexual harassment, including but not limited to:
1. Providing training to employees in accordance with law and administrative regulation;
2. Publicizing and disseminating the district’s sexual harassment policy to staff;
3. Ensuring prompt, thorough, and fair investigation of complaints; and
4. Taking timely and appropriate corrective/remedial action(s), which may include interim separation of the complainant and the alleged harasser and subsequent monitoring of developments.
Any district employee who feels that he/she has been sexually harassed or who has knowledge of any incident of sexual harassment by or against another employee, student, job applicant, intern, or volunteer shall immediately report the incident to his/her supervisor, the principal, district administrator, or the Assistant Superintendent, Human Resources.
For complaints of this nature made against the superintendent, refer to Board Policy 91204.
An employee may bypass his/her supervisor in filing a complaint where the supervisor is the
subject of the complaint.
A supervisor, principal, or other district administrator who receives a harassment complaint shall
report complaints to the Title IX Coordinator who will immediately log the complaint and shall
ensure that the complaint is appropriately investigated.
Director, Human Resources
501 N. Crescent Way / P.O. Box 3520
Anaheim, CA 92803
Phone: 714 999-1252
jensen_s@auhsd.us
Complaints of sexual harassment will be processed in accordance with AR 6106.
The district prohibits retaliatory behavior against any complaint or any participant in the sexual
harassment complaint process. All complaints and allegations of sexual harassment shall be kept
confidential except as necessary to carry out the investigation, take subsequent remedial action,
conduct ongoing monitoring, or as required by law. (2 CCR 11023) Individuals involved in the
investigation of such a complaint, shall not discuss the allegations or investigation-related
information outside the investigation process.
The district encourages complainants to file their alleged complaints of sexual harassment with
the district. However, complainants are not prohibited from submitting their complaint(s) directly
to the Department of Fair Employment and Housing (DFEH). The address and telephone number
of the local office of the DFEH is as follows:
Department of Fair Employment and Housing Commission
320 West 4th Street, 10th Floor
Los Angeles, CA, 90013
213-439-6799
Legal Reference:
EDUCATION CODE
200-262.4 Prohibition of discrimination, including sexual harassment
44932 Grounds for dismissal, certificated employees
45302 Causes for disciplinary action, classified employees
44010 Sex offenses
GOVERNMENT CODE
12900-12996 Fair Employment and Housing Act
PENAL CODE
11165.1 Sexual abuse
UNITED STATES CODE, Annotated, TITLE 42
2000e-2000e-17 Title VII, Civil Rights Act of 1964, as amended
UNITED STATES CODE, Annotated, TITLE 20
Section 1681 et seq. Title IX of the Education Amendments Act of 1972
Board of Trustees
June 27, 2000
Revised: October 4, 2001
Revised: March 7, 2002
Revised: December 13, 2018
Revised: December 15, 2020
Revised: November 17, 2022
SEXUAL HARASSMENT – EMPLOYEES AND APPLICANTS 6106-R
AR 8708
Personnel – Title IX Complaint Procedures
The complaint procedures described in this administrative regulation shall be used to address any complaint governed by Title IX of the Education Amendments of 1972 alleging that a district employee was subjected to one or more of the following forms of sexual harassment:
1. A district employee conditioning the provision of a district aid, benefit, or service on a person's participation in unwelcome sexual conduct
2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the district's education program or activity
3. Sexual assault, dating violence, domestic violence, or stalking, on the basis of sex, as defined in 20 USC 1092 or 34 USC 12291
All other sexual harassment complaints shall be investigated and responded to pursuant to Board Policy 91204, Complaints Concerning District Employees.
Filing a Complaint
A report of sexual harassment shall be submitted directly to or forwarded to the district's Title IX Coordinator:
Director, Human Resources
501 N. Crescent Way / P.O. Box 3520
Anaheim, CA 92803
Phone: 714 999-1252
jensen_s@auhsd.us
Upon receiving such a report, the Title IX Coordinator shall inform the complainant of the process for filing a formal complaint.
Even if the alleged victim chooses not to file a formal complaint, the Title IX Coordinator shall file a formal complaint in situations in which a safety threat exists. In addition, the Title IX Coordinator may file a formal complaint in other situations as permitted under the Title IX regulations. In such cases, the alleged victim is not a party to the case, but will receive notices as required by the Title IX regulations at specific points in the complaint process.
A formal complaint, with the complainant's physical or digital signature, may be filed with the Title IX Coordinator in person, by mail, by email, or by any other method authorized by the district.
The Title IX Coordinator shall dismiss a formal complaint if the alleged conduct would not constitute sexual harassment as defined in 34 CFR 106.30 even if proved. The Title IX Coordinator shall also dismiss any complaint that did not occur in the district’s education program or activity or did not occur against a person in the United States, and may dismiss a formal complaint if the complainant notifies the district in writing that the complainant would like to withdraw the complaint or any allegations in the complaint, the respondent is no longer employed by the district, or sufficient circumstances prevent the district from gathering evidence sufficient to reach a determination with regard to the complaint.
Upon dismissal, the Title IX Coordinator shall promptly, and simultaneously to the parties, send written notice of the dismissal and the reasons for the dismissal.
If a complaint is dismissed on the grounds that the alleged conduct does not constitute sexual harassment as defined in 34 CFR 106.30, the conduct may still be addressed pursuant to AR 4030 - Nondiscrimination in Employment as applicable.
Supportive Measures
Upon receipt of a report of Title IX sexual harassment, even if a formal complaint is not filed, the Title IX Coordinator shall promptly contact the complainant to discuss the availability of supportive measures which are non-disciplinary, non-punitive, and do not unreasonably burden the other party. Such measures may include, but are not limited to, counseling, extensions of deadlines, modifications of work schedules, mutual restrictions on contact, changes in work locations, leaves of absence, increased security, and monitoring of certain areas of the campus. The Title IX Coordinator shall consider the complainant's wishes with respect to supportive measures.
Emergency Removal
If a district employee is the respondent, the employee may be placed on administrative leave during the pendency of the formal complaint process.
If the respondent is a student, the district may, on an emergency basis, remove the student from the district's education program or activity, provided that the district conducts an individualized safety and risk analysis, determines that removal is justified due to an immediate threat to the physical health or safety of any student or other individual arising from the allegations, and provides the student with notice and an opportunity to challenge the decision immediately following the removal. This authority to remove a student does not modify a student’s rights under the Individuals with Disabilities Education Act or Section 504 of the Rehabilitation Act of 1973.
Informal Resolution Process
When a formal complaint of sexual harassment is filed, the district may offer an informal resolution process, such as mediation, at any time prior to reaching a determination regarding responsibility. The district shall not require a party to participate in the informal resolution process or to waive the right to an investigation and adjudication of a formal complaint.
The district may facilitate an informal resolution process provided that the district:
1. Provides the parties with written notice disclosing the allegations, the requirements of the informal resolution process, the right to withdraw from the informal process and resume the formal complaint process, and any consequences resulting from participating in the informal resolution process, including that records will be maintained or could be shared.
2. Obtains the parties’ voluntary, written consent to the informal resolution process
Formal Complaint Process / Investigation
The Superintendent or designee shall ensure that the Title IX Coordinator, investigator, decision-maker, or a facilitator of an informal resolution process does not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent, and that such persons receive training in accordance with 34 CFR 106.45.
If a formal complaint is filed, the Title IX Coordinator shall provide the known parties with written notice of the following:
1. The district’s Title IX complaint process, including any informal resolution process
2. The allegations potentially constituting sexual harassment with sufficient details known at the time, including the identity of parties involved in the incident if known, the conduct allegedly constituting sexual harassment, and the date and location of the alleged incident if known. Such notice shall be provided with sufficient time for the parties to prepare a response before any initial interview. If, during the course of the investigation, the district investigates allegations about the complainant or respondent that are not included in the initial notice, the Title IX Coordinator shall provide notice of the additional allegations to the parties.
3. A statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the complaint process
4. The opportunity for the parties to have an advisor of their choice who may be, but is not required to be, an attorney, and the ability to inspect and review evidence
5. The prohibition against knowingly making false statements or knowingly submitting false information during the complaint process
During the investigation process, the district shall:
1. Provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence
2. Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence
3. Provide the parties with the same opportunities to have others present during any grievance proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney
4. Not limit the choice or presence of an advisor for either the complainant or respondent in any meeting or grievance proceeding, although the district may establish restrictions regarding the extent to which the advisor may participate in the proceedings as long as the restrictions apply equally to both parties
5. Provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all investigative interviews or other meetings, with sufficient time for the party to prepare to participate
6. Send in an electronic format or hard copy to both parties and their advisors, if any, the evidence that is directly related to the allegations raised in the complaint, and provide the parties at least 10 calendar days to submit a written response for the investigator to consider prior to the completion of the investigative report
7. Objectively evaluate all relevant evidence, including both inculpatory and exculpatory evidence, and determine credibility in a manner that is not based on a person's status as a complainant, respondent, or witness
8. Create an investigative report that fairly summarizes relevant evidence and, at least 10 calendar days prior to the determination of responsibility, send to the parties and their advisors, if any, the investigative report in an electronic format or a hard copy, for their review and written response
9. After sending the investigative report to the parties and before a decision-maker reaches a determination regarding responsibility, the decision-maker must afford each party the opportunity to submit written, relevant questions that the party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party.
Questions and evidence about the complainant's sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence are offered to prove that someone other than the respondent committed the conduct alleged by the complainant or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.
The district shall maintain confidentiality and/or privacy rights of all parties to the complaint in accordance with applicable state and federal laws, except as may be permitted or required to carry out the Title IX complaint process.
If the complaint is against an employee, rights conferred under an applicable collective bargaining agreement shall be applied to the extent they do not conflict with the Title IX requirements.
Written Decision
The Superintendent shall designate an employee as the decision-maker to determine responsibility for the alleged conduct, who shall not be the Title IX Coordinator or a person involved in the investigation of the matter.
The decision-maker shall issue, and simultaneously provide to both parties, a written decision as to whether the respondent is responsible for the alleged conduct. The written decision shall be issued within 45 calendar days of the receipt of the complaint. However, this timeline may be extended for good cause with written notice to the complainant and respondent of the extension and the reasons for the action.
The district shall use the “preponderance of the evidence” standard for all formal complaints of sexual harassment.
The written decision shall include the following:
1. Identification of the allegations potentially constituting sexual harassment as defined in 34 CFR 106.30
2. A description of the procedural steps taken from receipt of the formal complaint through the written decision, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held if the district includes hearings as part of the grievance process
3. Findings of fact supporting the determination
4. Conclusions regarding the application of the district’s code of conduct to the facts
5. A statement of, and rationale for, the result as to each allegation, including a decision regarding responsibility, any disciplinary sanctions the district imposes on the respondent, and whether remedies designed to restore or preserve equal access to the district’s educational program or activity will be provided by the district to the complainant
6. The district’s procedures and permissible bases for the complainant and respondent to appeal
Appeals
Either party may appeal the district's decision or dismissal of a formal complaint or any allegation in the complaint, if the party believes that a procedural irregularity affected the outcome, new evidence is available that could affect the outcome, or a conflict of interest or bias by the Title IX Coordinator, investigator(s), or decision-maker(s) affected the outcome. If an appeal is filed, the district shall:
1. Notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties
2. Ensure that the decision-maker(s) for the appeal is trained in accordance with 34 CFR 106.45 and is not the same decision-maker(s) who reached the determination regarding responsibility or dismissal, the investigator(s), or the Title IX Coordinator
3. Give both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome
4. Issue a written decision describing the result of the appeal and the rationale for the result
5. Provide the written decision simultaneously to both parties
An appeal must be filed in writing within 5 school days of receiving the determination, stating the grounds for the appeal and including any relevant documentation in support of the appeal. Appeals submitted after this deadline are not timely and shall not be considered. Either party has the right to file a complaint with the U.S. Equal Employment Opportunity Commission.
A written decision shall be provided to the parties within 7 school days from the receipt of the appeal.
Remedies / Disciplinary Actions
The district shall not impose any disciplinary sanctions or other actions against a respondent, other than supportive measures as described above in the section "Supportive Measures," until the complaint procedure has been completed and a determination of responsibility has been made.
When a determination of responsibility for sexual harassment has been made against the respondent, the district shall provide remedies to the complainant. Such remedies may include the same individualized services described above in the section “Supportive Measures,” but need not be non-disciplinary or non-punitive and need not avoid burdening the respondent.
When an employee is found to have committed sexual harassment or retaliation, the district shall take appropriate disciplinary action, up to and including dismissal, in accordance with applicable law
and collective bargaining agreement.
Record-Keeping
The Superintendent or designee shall maintain for a period of seven years a record of all reported cases and Title IX investigations of sexual harassment, any determinations of responsibility, any audio or audiovisual recording and transcript if applicable, any disciplinary sanctions imposed, any remedies provided to the complainant, any appeal or informal resolution and the results therefrom, and responses made pursuant to 34 CFR 106.44.
The Superintendent or designee shall also maintain for a period of seven years all materials used to train the Title IX Coordinator, investigator(s), decision-maker(s), and any person who facilitates an informal resolution process. The district shall make such training materials publicly available on its web site, or if the district does not maintain a web site, available upon request by members of the public.
Legal Reference:
EDUCATION CODE
200-262.4 Prohibition of discrimination on the basis of sex
48900 Grounds for suspension or expulsion
48900.2 Additional grounds for suspension or expulsion; sexual harassment
48985 Notices, report, statements and records in primary language
CIVIL CODE
51.9 Liability for sexual harassment; business, service and professional relationships
1714.1 Liability of parents/guardians for willful misconduct of minor
GOVERNMENT CODE
12950.1 Sexual harassment training
CODE OF REGULATIONS, TITLE 5
4600-4670 Uniform complaint procedures
4900-4965 Nondiscrimination in elementary and secondary education programs
UNITED STATES CODE, TITLE 20
1092 Definition of sexual assault
1221 Application of laws
1232g Family Educational Rights and Privacy Act
1681-1688 Title IX of the Education Amendments of 1972
UNITED STATES CODE, TITLE 34
12291 Definition of dating violence, domestic violence, and stalking
UNITED STATES CODE, TITLE 42
1983 Civil action for deprivation of rights
2000d-2000d-7 Title VI, Civil Rights Act of 1964
2000e-2000e-17 Title VII, Civil Rights Act of 1964 as amended
CODE OF FEDERAL REGULATIONS, TITLE 34
99.1-99.67 Family Educational Rights and Privacy
106.1-106.82 Nondiscrimination on the basis of sex in education programs
COURT DECISIONS
Donovan v. Poway Unified School District, (2008) 167 Cal.App.4th 567
Flores v. Morgan Hill Unified School District, (2003, 9th Cir.) 324 F.3d 1130
Reese v. Jefferson School District, (2000, 9th Cir.) 208 F.3d 736
Davis v. Monroe County Board of Education, (1999) 526 U.S. 629
Gebser v. Lago Vista Independent School District, (1998) 524 U.S. 274
Oona by Kate S. v. McCaffrey, (1998, 9th Cir.) 143 F.3d 473
Doe v. Petaluma City School District, (1995, 9th Cir.) 54 F.3d 1447
Management Resources:
WEB SITES
CSBA: http://www.csba.org
California Department of Education: http://www.cde.ca.gov
U.S. Department of Education, Office for Civil Rights: http://www.ed.gov/about/offices/list/ocr
Board of Trustees
March 7, 2002
Revised: December 13, 2018
Revised: December 15, 2020
Revised: November 17, 2022