In 2020 the Legislature enacted a series of requirements relating to sexual misconduct allegations and investigations that must be followed by institutions of higher education during the hiring process.
Before an official offer of employment, a postsecondary educational institution (institution) must request an applicant to sign a statement with three items:
Additionally, before an official offer of employment, the institution must request that the applicant's current and past employers provide copies of all documents, if any, related to sexual misconduct in an employee's personnel file. The request must include a copy of the applicant's declaration and signed statement. The institution must also ask the applicant if he or she is the subject of any substantiated findings of, is currently being investigated for, or has left a position during an investigation into, sexual misconduct, and if so, an explanation of the situation. The institution may only use the information received for the purpose of evaluating the applicant's qualifications for the position for which the person applied.
An institution that receives a request to disclose information about substantiated findings or investigations into sexual misconduct about a current or previous employee must provide the information requested and make copies of documents related to substantiated sexual misconduct in the applicant's personnel file available to the requesting institution. In addition, an institution must disclose information about substantiated findings of sexual misconduct to any employer conducting reference or background checks on a current or former employee, even if the employer conducting the reference check does not specifically ask for such information.
An institution may not hire an applicant who does not sign the statement attesting to any sexual misconduct findings or investigations.
Institutions, or an employee acting on behalf of the institution, who disclose information are presumed to be acting in good faith and are immune from civil and criminal liability for disclosure. The institution is not liable for nondisclosure of information by an employee without access to personnel records who is asked to respond to a reference check. Institutions must share best practices with all staff who are likely to receive reference checks about how to inform requesters to contact the appropriate office for personnel records. Institutions must keep personal identifying information of the complainant and any witness confidential, unless the complainant or witness agree to disclose their identifying information. The disclosure requirements do not restrict expungement from a personnel file or employment records of information about alleged sexual misconduct that has not been substantiated.
The statement that must be signed by an applicant prior to an offer of employment must include the following:
Additionally, prior to an offer of employment, an institution must request in writing that the applicant's current and past relevant associations provide the information described in the list above.
Association means a scholarly or professional organization or learned society that sponsors activities or events for the benefit of individuals affiliated with postsecondary education institutions, with a code of conduct forbidding sexual misconduct at such activities or events, and established investigative procedures for allegations that the code of conduct has been violated.
"Investigation" and "substantiated findings" are defined.
The substitute bill specifies that an applicant's declaration regarding substantiated findings of sexual misconduct by any association means an association with which the applicant has, or has had, a professional relationship. Requirements relating to ongoing investigations of sexual misconduct by an association are removed. "Investigation" and "substantiated findings" are defined.
(In support) In 2020 the Legislature passed the first legislation in the United States addressing the documented problem of "passing the harasser." This refers to an administrator or faculty member found to have committed sexual misconduct being able to quietly walk off the campus with a non-disclosure agreement and then be hired by another institution, which led to the second institution having no knowledge of the offense. The prevalence of repeating sexual assault offenses is high. Surveys have found that approximately 50 percent of all women students have suffered from some form of sexual harassment, as well as over 50 percent of graduate students and a significant portion of LGBTQ students. Many times this happens at an association meeting, which is not currently addressed in law. This bill covers this problem. There needs to be a mechanism to say that institutions will not hire an applicant until the applicant is asked if they have committed sexual misconduct, not just at a prior employer location, but at a conference. If an association does not have an investigative process, the association cannot be asked to provide investigative results, which is why the bill only applies to associations with established investigative procedures. There does need to be some work to provide assurance that due process under Title IX is followed.
Sexual harassment is unacceptable in any venue. Everyone deserves to be safe at institutions as well as the conferences they travel to to support the institutions. The bill formally recognizes something that has been an open secret. Sexual harassment happens all too often outside of formal university events, often in meetings held by associations. This bill sends a clear signal that Washington stands firmly against any sexual harassment. This expansion to the "pass the harasser" law has generated considerable interest across the country. Washington once again has the opportunity to be a national leader and inspire other states.
Associations are waking up to the notion that they have a problem. Only in the last few years are associations starting to have codes of conduct and investigative procedures. Several associations have codes of conduct prohibiting sexual harassment, but not all follow up with investigative procedures. The focus of this bill is to ensure that findings from associations have the same standing as those of a previous employer.
Sexual misconduct is not an anomaly on college campuses. It is the norm. The Rape, Abuse, and Incest National Network reports that college women between the ages of 18 and 24 are at an elevated risk, but it can happen to any student on campus. Sexual misconduct should be reported and condemned whether it happened on or off campus, especially if it involves relationships involving a student and staff member, as that is an issue of power. Students need support and perpetrators should be held accountable. Professors found guilty of sexual misconduct off campus are still allowed to teach at universities. Students express concern about learning in this environment. Such professors can walk away and work at other institutions.
(Opposed) Sexual misconduct is a widespread societal problem. When there are findings of sexual misconduct they need to be dealt with appropriately. There is concern with associations conducting the investigations. They do not have the same resources in terms of staff, expertise, experience, or time as employers. There is no stipulation in the bill that requires representation for both the person being accused and the person making the allegations. It is important that both parties have representation.
As compared to the substitute bill, the second substitute bill:
(In support) Washington leads the nation in addressing sexual misconduct on higher education institution campuses. Individuals were moving from institution of higher education to institution to evade discipline for sexual misconduct. Data suggest that half of the sexual misconduct against graduate students and faculty occur at associations and conferences. An amendment will tighten the bill to address only when a substantiated finding has been found.
This bill holds perpetrators accountable. By addressing loopholes in the current statute, the bill is a part of supporting victims. Sexual misconduct has detrimental long-term impacts. Students need to feel safe and supported. This bill also addresses workplace safety, as faculty and staff may also be victims of sexual misconduct. This bill only applies to new employee hires.
This bill continues to expand current law to include conferences and other off-campus sites. With an amendment, the fiscal impact should decrease to be able to be accomplished within existing resources. Students across the state have continued to push this policy forward, in the right direction.
(Opposed) None.