Informal Resolution Process
After a person files with the District’s Title IX Coordinator a Title IX formal complaint of unlawful sex discrimination or sexual harassment against a person, (except when the complaint is a student complaint of an Ohlone employee sexually harassing the student – see (iii) below), or at any time prior to reaching a determination regarding responsibility, Ohlone may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication, provided that Ohlone:
- Provides to the parties a written notice disclosing:
- the allegations,
- the requirements of the informal resolution process including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations, provided, however, that at any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint, and
- any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared (34 CFR 106.45(b)(9)(i));
- Obtains the parties’ voluntary, written consent to the informal resolution process. Ohlone does not mandate mediation. (34 CFR 106.45(b)(9)(ii));
- Does not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student (34 CFR 106.45(b)(9)(iii)); and
- Does not allow an informal resolution process to resolve allegations of sexual violence. (Educ. Code § 66281.8(b)(4)(A)(xxi)(I).)
Ohlone will provide the above notice and then:
- Request and try to obtain all parties’ voluntary, informed, written consent to attempt informal resolution.
- Both (or all) parties must give voluntary, informed, written consent to attempt informal resolution.
- Ohlone will not require the parties to participate in an informal resolution process. Ohlone will not require as a condition of enrollment or continuing enrollment, or employment or continuing employment, or enjoyment of any other right, waiver of the right to an investigation and adjudication of formal complaints of sexual harassment.
- Ohlone cannot offer an informal resolution process unless a formal complaint is filed. 34 CFR 106.45(b)(9).
- Ohlone shall not require that the complainant enter a voluntary resolution agreement or any other form of resolution as a prerequisite to receiving interim, supportive, or remedial measures which safeguard the complainant’s access to education. (Educ. Code § 66281.8(b)(4)(A)(xxi)(II).)
- If all consent, undertake efforts to informally resolve the concerns, such as by mediated discussions.
- Obtain the parties’ signatures on a written resolution agreement if a resolution is reached.
- The written resolution agreement will state that the complainant is withdrawing the formal complaint because the complaint has been resolved, , which precludes the parties from resuming a formal complaint arising from the same allegations.
- The written resolution agreement will state that the written resolution agreement will be maintained in the records of the complainant and respondent for seven years and can be shared within Ohlone and with Ohlone’s advisers, but will not be shared with those outside Ohlone except as authorized or required by FERPA (if a student) or other laws.
- The written resolution agreement will include any other agreed-upon terms, such as an agreement not to sue, agreement to release claims for past behavior, no contact (or requirements for professional contact), prohibited behavior, and stay-away terms.
Any person who facilitates an informal resolution will be well trained.
At any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint.
The Department of Education’s Title IX Final Rule prohibits Ohlone from using an informal process for a claim of an employee allegedly sexually harassing a student. 34 CFR 106.45(b)(9)(iii).
State law does not allow an informal resolution process to resolve allegations of sexual violence. (Educ. Code § 66281.8(b)(4)(A)(xxi)(I).)
The purpose of the informal resolution process is to allow a complainant to resolve the formal complaint through a mediation process rather than the formal complaint grievance process. Typically, the informal process is effective when there is a simple misunderstanding or the parties want to try to resolve the concern, rather than to follow the formal complaint grievance process.
Resolution of an informal complaint can sometimes be achieved with a clarification of the misunderstanding or an apology from the respondent and an assurance that the offending behavior will cease.
If the parties state they want to try the informal process, the responsible district officer shall present the parties with a voluntary, informed, written consent to the informal resolution process for the parties to review, sign, and date.
If the matter is informally resolved, the resolution agreement will state that the complainant dismisses the complaint.
The District will allow for representation where required by law and may allow for representation for the respondent and complainant in other circumstances on a case by case basis and applied equally to both parties. Each party is to provide prior written notice to Ohlone’s Title IX Coordinator of representation by counsel or other representative at least five week days before the informal resolution process date.