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PDFWAC 132F-121-330

Sex discriminationPresentation of evidence.

In cases involving allegations of sex-based harassment, the complainant and respondent may not directly question one another or other witnesses. In such circumstances, the chair will determine whether questions will be submitted to the chair, who will then ask questions of the parties and witnesses, or allow questions to be asked directly of any party or witnesses by a party's attorney or advisor. The committee chair may revise this process if, in the chair's determination, the questioning by any party, attorney, or advisor, becomes contentious or harassing.
(1) Prior to any question being posed to a party or witness, the chair must determine whether the question is relevant and not otherwise impermissible; and must explain any decision to exclude a question that is deemed not relevant, or is otherwise impermissible. The chair will retain for the record copies of any written questions provided by any party.
(2) The chair must not permit questions that are unclear or harassing; but shall give the party an opportunity to clarify or revise such a question.
(3) The chair shall exclude and the committee shall not consider legally privileged information unless the individual holding the privilege has waived the privilege. Privileged information includes, but is not limited to, information protected by the following:
(a) Spousal/domestic partner privilege;
(b) Attorney-client communications and attorney work product privilege;
(c) Clergy privileges;
(d) Medical or mental health providers and counselor privileges;
(e) Sexual assault and domestic violence advocate privileges; and
(f) Other legal privileges set forth in RCW 5.60.060 or federal law.
(4) The chair shall exclude and the committee shall not consider questions or evidence that relate to the complainant's sexual interests or prior sexual conduct, unless such question or evidence is offered to prove someone other than the respondent committed the alleged conduct, or is evidence of specific instances of prior sexual conduct with the respondent that is offered to prove consent to the alleged sex-based harassment. The fact of prior consensual sexual conduct between the complainant and respondent does not by itself demonstrate or imply the complainant's consent to the alleged sex-based harassment or preclude determination that sex-based harassment occurred.
(5) The committee may choose to place less or no weight upon statements by a party or witness who refuses to respond to questions deemed relevant and not impermissible. The committee must not draw an inference about whether sex-based harassment occurred based solely on a party's or witness's refusal to respond to such questions.
[Statutory Authority: RCW 34.05.010(16) and 28B.50.140(13). WSR 25-02-075, s 132F-121-330, filed 12/24/24, effective 1/24/25. Statutory Authority: RCW 28B.50.140 and 28B.50.090(3). WSR 23-12-052, § 132F-121-330, filed 6/1/23, effective 7/2/23; WSR 21-10-027, § 132F-121-330, filed 4/26/21, effective 5/27/21.]