Sexual Harassment

For purposes of this chapter, harassment and other discrimination on the basis of sex include, but are not limited to, the following practices:

(a) On the basis of sex, exclusion of a person or persons from participation in, denial of the benefits of, or subjection to harassment or other discrimination in, any academic, extracurricular, research, occupational training, or other program or activity.

(b) On the basis of sex, provision of different amounts or types of student financial aid, limitation of eligibility for student financial aid, or the application of different criteria to applicants for student financial aid or for participation in the provision of student financial aid by others. Nothing in this subdivision shall be construed to prohibit an educational institution from administering, or assisting in the administration of, scholarships, fellowships, or other forms of student financial aid, established pursuant to domestic or foreign wills, bequests, trusts, or similar legal instruments or by acts of a foreign government, which require that awards be made to members of a particular sex; provided, that the overall effect of the award of these sex-restricted scholarships, fellowships, and other forms of student financial aid does not discriminate on the basis of sex.

(c) On the basis of sex, exclusion from participation in, or denial of equivalent opportunity in, athletic programs. For purposes of this subdivision, “equivalent” means equal or equal in effect.

(d) An educational institution may be found to have effectively accommodated the interests and abilities in athletics of both sexes within the meaning of Section 4922 of Title 5 of the California Code of Regulations as that section exists on January 1, 2003, using any one of the following tests:

(1) Whether interscholastic level participation opportunities for male and female pupils are provided in numbers substantially proportionate to their respective enrollments.

(2) Where the members of one sex have been and are underrepresented among interscholastic athletes, whether the school district can show a history and continuing practice of program expansion that is demonstrably responsive to the developing interest and abilities of the members of that sex.

(3) Where the members of one sex are underrepresented among interscholastic athletes, and the institution cannot show a history and continuing practice of program expansion as required in paragraph (2), whether the school district can demonstrate that the interest and abilities of the members of that sex have been fully and effectively accommodated by the present program.

(e) If an educational institution must cut its athletic budget, the educational institution shall do so consistently with its legal obligation to comply with both state and federal gender equity laws.

(f) It is the intent of the Legislature that the three-part test articulated in subdivision (d) be interpreted as it has been in the policies and regulations of the Office of Civil Rights in effect on January 1, 2003.

(g) On the basis of sex, harassment or other discrimination among persons, including, but not limited to, students and nonstudents, or academic and nonacademic personnel, in employment and the conditions thereof, except as it relates to a bona fide occupational qualification.

(h) On the basis of sex, the application of any rule concerning the actual or potential parental, family, or marital status of a person, or the exclusion of any person from any program or activity or employment because of pregnancy or related conditions.

All of the foregoing apply to complaints of sexual harassment. For the purpose of clarification, prohibited sexual harassment includes but is not limited to unwelcome sexual advances, requests for sexual favors and other verbal, nonverbal, visual or physical conduct of a sexual nature where:

(1) Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, academic status or progress;

(2) Submission to, or rejection of, such conduct by an individual is used as the basis of employment or educational decisions affecting the individual;
Such conduct has the purpose or effect of having a negative impact upon the individual’s work or academic performance or creating an intimidating, hostile, or offensive working or educational environment; or

(3) Submission to, or rejection of the conduct by the individual regarding benefits and services, honors, programs, or activities available at or through the district or its sites.

Examples of prohibited harassing acts:

1. Unwelcome sexual advances or sexual propositions
2. Kidding, teasing, or joking of a sexual nature or of other protected bases delineated above
3. Graphic commentary about an individual’s body, sexual prowess or sexual deficiencies
4. Derogatory or demeaning comments about anyone’s gender in general or gender identity or expression, epithets, slurs or jokes about one’s race, color, national origin, religious creed, physical or mental disability, age (40 and over), sex, gender identity or expression, sexual orientation, or marital status
5. Leering or staring at someone
6. Unwelcome suggestive or insulting sounds such as whistles, kissing sounds, howling, or sucking noises
7. Touching, patting, pinching, stroking, squeezing, tickling or brushing against another’s body
8. Displaying offensive objects, pictures, calendars, cartoons, magazines, videotapes, audio recordings or literature which are sexual in nature
9. Unwelcome use of sexually degrading language or innuendoes
10. Obscene gestures

Consensual sexual relationships:
Romantic or sexual relationship of any employee with elementary or secondary students is clearly prohibited pursuant to state molestation laws concerning adults and children. Romantic or sexual relations between an adult student and faculty member or between a subordinate employee and his/her superior can raise “serious concerns” where there may be a conflict of interest and abuse of power. Such relations may lead to favoritism of a student or subordinate employee with whom the teacher of superior is sexually involved and where such favoritism adversely affects other students and/or employees

1. Unwanted neck or shoulder massage
2. Spreading rumors about a person’s sexuality
3. Graffiti about a person’s sexuality
4. Letters, notes, telephone calls, e-mail or materials of a sexual nature
5. Stalking a person
6. Attempted or actual sexual assault
7. Making or threatening reprisals after a negative response to sexual advances
8. Impeding or blocking of one’s movement
9. Repeatedly asking out a person who is not interested

Enforcement
Disciplinary action up to and including termination will be promptly taken against any employee (non-supervisory, supervisor or manager) if it becomes known to management that such person has engaged in conduct prohibited by this policy.

No Retaliation
No employee or student shall be retaliated against, in any manner, for reporting conduct which he/she believes to be a violation of this policy, for participating in an investigation of a possible violation of this policy, or for using the District’s Complaint Procedure.

Retaliation against anyone reporting or perceived to have reported sexual harassment behavior is prohibited. Any retaliatory conduct shall be considered a serious violation of this policy and shall be independent of whether a complaint of sexual harassment is substantiated. Moreover, encouraging others to engage in retaliatory conduct also violates this policy.

Examples of prohibited retaliation:

1. Unfair grading
2. Unfair evaluation
3. Unfair assignment
4. Public or private ridicule
5. Oral or written threats
6. Intimidation
7. Destruction of property
8. Further harassment

Complaints
Individuals who have been subjected to discriminatory harassment have an obligation to immediately report the incident or incidents to their immediate supervisor or the district's Affirmative Action Officer, who is also the district's Title IX Coordinator. The complaint will be processed in accordance with the district's Uniform Complaint Policy and Procedure. School personnel who witness such bullying acts are required to take immediate steps to intervene when safe to do so.

The procedure set forth pursuant to the district's Uniform Complaint Policy and Procedure does not deny the right of any individual to pursue other avenues of remedy under the jurisdiction of any state or federal law.

The confidentiality of the reporting or complaining party will be observed provided it does not interfere with the district's ability to investigate or take corrective action and will remain confidential, as appropriate.

Written notice to both parties of investigation, allegations, potential policy violations, all interviews, changes in process, meetings, hearings, appeals, decisions, or other adjustments made during the investigative process.

The trained investigator should not be the decision maker/hearing officer or appeal officer.

Both parties have the equal opportunity for a representative of their choice, no credibility determinations based on role, provide the same opportunity to present and consider evidence.

The Investigator has the burden to gather evidence and provide evidence to both parties with ten (10) days to review and comment.

The burden of proof is measured by the preponderance of the evidence or clear and convincing evidence.

An investigative summary/report may be required to both parties with ten (10) days to review and respond.

During the investigative process, it is presumed that the respondent is not responsible for the alleged conduct.

The District may dismiss the formal complaint or allegations if the allegations do not meet the definition of sexual harassment, or conduct occurred outside of the program or activity, or conduct did not occur against a person in the United States of America.

The District may dismiss the formal complaint or allegation if the complainant requests in writing, respondent is not enrolled/employed or circumstance prohibit gathering of sufficient evidence.

The District code of conduct prohibits knowingly making false statements or knowingly submitting false information during the process.
 

Supportive Measures
As a part of this policy, there will be a requirement to provide an offer of supportive measures in order to avoid a burden on the involved parties for individualized concentration.

Must be offered to anyone as soon as institution has notice of possible Title IX concern.

Non-punitive, non-disciplinary, and not unreasonably burdensome to the other party.

Ensure equal educational access, protect safety or deter sexual harassment.

Counseling, course-related adjustments, modify schedule, escort, increased security and monitoring, mutual restrictions on contact between the parties, voluntary independent study and other programs.

Enforcement
Disciplinary action up to and including termination will be promptly taken against any employee (nonsupervisory, supervisor or manager) if it becomes known to management that such person has engaged in conduct prohibited by this policy.

Emergency Removal
The District may remove the respondent (by placing the employee on administrative Leave).

Undertake individualized safety and risk analysis (Provide supportive measures to involved Parties).

Analysis reveals immediate threat to the physical health or safety of the individual.

Notice to the respondent (advising of allegations).

Opportunity to challenge the decision immediately following the removal (the employee may submit an appeal to the Assistant Superintendent or their designee).

Cannot modify rights under IDEA, Section 504, or ADA

Cross-Examination and Optional Hearing
If a hearing is not used, the parties involved are allowed to submit written questions. If the questions are not asked a written reason must be provided.

Rape Shield Protections (if the complaint of sexual harassment reveals that a criminal case exists, the law enforcement agency with jurisdiction shall be sent the referral with appropriate information).

Evidence about the complainant’s prior sexual behavior or discipline record is irrelevant unless it’s offered to prove someone else committed the conduct. Optional Live Hearing (an expulsion hearing may not replace this hearing)

A separate virtual room is an acceptable option. At the request of either party, can separate the parties with technology.

Cross-Examination through the Investigation. Each party’s advisor may ask other party and witnesses relevant follow up and credibility questions.

Failure to be at the hearing for cross-examination eliminates certain evidence.

Decision After the Hearing
Decision Maker determines responsibility.

Must not/cannot be the Title IX Coordinator or Investigator.

The Decision Maker must be trained to rule on relevant questions and weigh evidence.

Understands the “preponderance of the evidence” or “clear and convincing evidence” standard.

Informal Resolution Process
The District reserves the option, based on the complainant’s concerns and input, to provide and establish an informal resolution process based on the following criteria.

An optional process that may use informal resolution process on a case-by-case basis.

Informed, mutual consent where both parties must give voluntary, informed, and written consent but cannot be required as a condition of enrollment/employment.

Right to withdraw from informal process at any time and resume formal processing.

This is not suitable for student vs. employee matters and/or allegations that an employee harassed a student.

Written Decision and Appeal
Includes the finding of fact, conclusion, rationale, disciplinary sanction, and remedies to the complainant,

Any basis for an appeal must be procedural irregularity in nature that affected the outcome, any new evidence that was not reasonably available that could have affected the outcome, any conflict of interest or bias generally proven or specifically identified by the Title IX Coordinator, Investigator, or decision maker.

The complainant has a right to appeal the decision by filing a written appeal to the Decision Maker for Appeals.

Notifications
Pursuant to Educational Code 212.6, a copy of this policy will be displayed in a prominent location in the main administrative building or other areas of the school site. A prominent location is a location where notices regarding the district's rules, regulations, procedures, and standards of conduct are posted.

Also, a copy of this policy will be provided to each person employed by the school district at the beginning of the first quarter or semester of the school year, or at the time that a new employee is hired.

Site administrators or immediate supervisors who receive a sexual harassment incident report from any employee, non-employee or the public are required to submit a report to the Affirmative Action Office in order for the Affirmative Action Office to maintain a record of complaints. Also, any report or complaint of bullying based on actual or perceived gender with their resolution will be submitted to the Affirmative Action Office.

The San Bernardino City Unified School District has established the Title IX investigative and processing team, under the Title IX Coordinator as prescribed in the Affirmative Action Officer within Labor Relations and Compliance under the Human Resources Division. The following are subject to re-alignment at the discretion of the District:

Title IX Coordinator:  Affirmative Action Officer

Investigators:  Assistant Affirmative Action Officer and others pre-selected on a case-by-case basis by the Title IX Coordinator

Facilitator of Informal Resolution Process:    Human Resources Officer or designee

Hearing Officer/Decision Maker:  Labor Relations and Compliance/Employee Relations Director

Decision Maker for Appeals:  Assistant Superintendent of Human Resources or designee

Original Adopted Date: 10/16/2007
Last Revised Date: 7/19/2022