Effective January 1, 2022, per California Senate Bill 493, all staff and faculty members are considered Mandatory Reporters of incidents or concerns involving Gender-Based Discrimination, Harassment, and Sexual Misconduct.
The term Mandatory Reporter or "Responsible Employee" means an employee who has the authority to take action to redress sexual harassment or provide supportive measures to students, or who has the duty to report sexual harassment to an appropriate school official who has that authority.
Since this is a new obligation for faculty, we have developed FAQs for some of the most common questions.
The new law is California Senate Bill 493, which you can read online at https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB493. It applies to all institutions of higher education that receive state funding, which includes Santa Clara University.
The intent is to protect students by encouraging and expanding the likelihood that incidents related to sexual assault or sexual harassment will be reported and students will learn about and receive the support they may need.
The law states that, “When institutions fail to effectively respond to allegations of sexual harassment and violence, the impact on students can be devastating.” “Every student has a right to be protected from sex discrimination, including sexual harassment,” and that, to enable this protection, “Each institution of higher education has a responsibility to make reasonable efforts to respond effectively when sexual harassment is reported to, or observed by, college and university faculty and staff…” (§I.k).
As of January 1, 2022, faculty members are now included in the list of “responsible employees” who are required to report incidents of sexual misconduct that students share with you inside or outside of class. As a responsible employee, you are required to notify the SCU Office of Equal Opportunity and Title IX if a student discloses an incident related to sexual misconduct.
The new law requiring faculty to report was signed into law as of September, 2020. It came into effect as of January 1, 2022.
State and federal laws always supersede employee manuals. In our case, this new state law supersedes the “Discrimination, Harassment, and Sexual Misconduct Policy, Response and Resolution Procedures, Interim Policy” that was approved in spring 2021 by faculty, staff, students, and administration through our internal collaborative governance process (the policy, amended to comply with SB 493, is published as Appendix F in the SCU Faculty Handbook and incorporated by reference in the contractual chapter 3; it is also published on the website of the Office of Equal Opportunity and Title IX, https://www.scu.edu/media/offices/eeo/SCU-Discrimination-Harassment-Policy-2020.pdf).
While state and federal laws apply to faculty regardless of incorporation in the Faculty Handbook, the Faculty Affairs Committee has begun work to include this new requirement in the section on Unlawful Harassment and Unlawful Discrimination (3.6.7). The Office of Equal Opportunity and Title IX amends the Interim Policy as needed to comply with state and federal law.
The new law does not create a carve-out for class work, and supersedes other student and faculty protections:
- FERPA (Family Educational Rights and Privacy Act) protects disclosure of student work and student records to third parties, but allows disclosure of certain information within the university, for student safety (for SCU’s FERPA policy, see https://www.scu.edu/ferpa/scu-ferpa-policy/).
- Academic freedom has been understood by faculty to allow the conduct of class as they see fit, including not only the design and delivery of the class but the creation of assignments and assessment of student work. However, limits on academic freedom might be imposed for curricular, institutional, or legal reasons, such as the compelling interest articulated in Title IX and SB 493 to protect students from harm and to support them.
- The First Amendment protects individuals from government interference in speech, and protects individuals from being punished for speech, neither of which apply to the requirement to report incidents of sexual harassment.
When Title IX was passed, a carve-out was allowed for federal government research on sexual misconduct: if the project passed Institutional Review Board (IRB) review, then researchers were not required to report. But for other types of research, if a student reveals an incident of sexual misconduct, then yes, you should report. The purpose of the law is to make sure that students have the support they need, and the Office of Equal Opportunity and Title IX is best positioned to inform the student of their options, even for past events and events that take place outside the University's jurisdiction.
The obligation of the primary investigator or lab coordinator as a mandated reporter should be disclosed to students in informed consent acknowledgments. If students are currently human subjects and signed informed consent acknowledgments before the principal investigator was aware of their obligation to report, the students should be asked to sign an addendum to acknowledge the investigator’s responsibility.
If you hire students as research assistants and task them with conducting interviews, you should train them to bring any reports of sexual misconduct to your attention immediately. Whether you learn of these reports immediately or later in transcripts of student-conducted interviews, you have an obligation to report the incident to the SCU Office of Equal Opportunity and Title IX when you become aware of it. Your student research assistants are not mandated reporters, but you are.
Yes. The Office of Equal Opportunity and Title IX is concerned to reach out to students to offer them support, and they can handle redundant reports about the same incident.
“Responsible employees” who must report incidents of sexual misconduct or assault to the University’s Office of Equal Opportunity and Title IX include:
- Faculty of all appointment types, terms, and ranks, including part-time faculty, teachers, instructors, or lecturers
- Graduate student instructors, while performing the duties of employment by the institution
- Laboratory directors, coordinators, or principal investigators
- Internship or externship directors or coordinators
- Study abroad program directors or coordinators
Staff were generally already required to report incidents of sexual misconduct. This law lists some of those staff members who are considered “responsible employees”:
- Title IX coordinator or other coordinator designated to comply with and carry out the institution’s responsibilities relating to sexual harassment reports
- Residential advisors, while performing the duties of employment by the institution; at Santa Clara, this group includes community facilitators, spirituality facilitators, resident directors and assistant resident directors
- Housing directors, coordinators, or deans
- Student life directors, coordinators, or deans
- Athletic directors, coordinators, or deans
- Coaches of any student athletic or academic team or activity
If students want to discuss a sexual harassment or sexual violence incident without triggering mandated reporting to the SCU Title IX Office, they can reach out to the following people:
- Bree Van Ness, Assistant Director for Student Survivor Advocacy and Campus Support, SCU Wellness Center, 852 Market St, (408) 551-3307, email@example.com (Wellness Center website, https://www.scu.edu/wellness/survivor-advocacy--support/)
- A professional therapist serving in their capacity as a therapist, including the therapists at CAPS
- Clergy operating in their capacity as clergy
- Any individual acting in a professional capacity for which confidentiality is mandated by law
It depends. If you are encountering the student in a professional therapy session or ministerial counseling situation, you are not a mandated reporter—although even in these situations you are expected to inform the student of their ability to report to the incident to the University, either anonymously through EthicsPoint or non-anonymously through the Office of Equal Opportunity and Title IX (using the Request for Support and Assistance form). Alternatively, should the student waive confidentiality and give you permission to share the information with the Office of Equal Opportunity and Title IX, you are permitted to do so on their behalf.
Regardless of your professional or ministerial affiliation, if and when you are operating in your capacity as a faculty member, you are required to report incidents that students disclose.
You are required to report incidents of sexual harassment, including sexual battery, sexual violence, and sexual exploitation, as well as unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature (SB 493, Sec. 2).
No. The requirement to report is not limited to incidents on campus at Santa Clara University, or to incidents when the student is engaged in a Santa Clara University-affiliated activity (e.g., immersion trip, study abroad, ELSJ placements, internships). It applies to reports of any incident “that could interfere with a student’s access to education.” A report to the Title IX Office allows the University to reach out to the student to offer resources appropriate to the situation.
No. If the person who confides in you is a student, it doesn’t matter who the other parties are. The law is meant to support the student complainant, regardless of other circumstances.
The same rules apply whether the student is the perpetrator or the victim; you are obligated to report. A report to the Title IX Office allows the University to reach out to the student to offer resources appropriate to the situation.
Yes. If a student reports something that happened to a friend or acquaintance, something they themselves witnessed, or even something that they heard about second-hand, you should report it. The law states that, "The institution shall take reasonable steps to respond to each incident of sexual harassment involving individuals subject to the institution’s policies that occur in connection with ANY educational activity or other program of the institution, as well as incidents that occurred outside of those educational programs or activities, whether they occurred on or off campus, if, based on the allegations, there is any reason to believe that the incident could contribute to a hostile educational environment or otherwise interfere with a student's access to education" (Section 3.3(B), p. 7; emphasis added).
If you need to report an incident of sexual misconduct, the process is simple: contact the Title IX office with the name of the student and a statement that you are filing a third-party report of an incident of sexual misconduct. You can do this by email or online, using the online report form link below:
|Location:||Office of Equal Opportunity and Title IX
425 El Camino Real, Suite 140
Santa Clara, CA 95050
|Email:||firstname.lastname@example.org or email@example.com|
|Online report form:||Request for Support and Assistance Form, https://cm.maxient.com/reportingform.php?SantaClaraUniv&layout_id=41|
No. The Title IX Office will reach out to the student to be sure they have the resources they need and to offer information on the investigation and resolution process. Regardless of the report, the student retains control over whether or not to pursue an investigation. If the Title IX Office believes an investigation is warranted, the original complainant is notified so that they can choose to take part in the investigation or not. If they choose not to take part, the University can pursue the investigation as the complainant.
In general, University faculty should not report incidents of sexual misconduct to Campus Safety Services or to the police. The authority to whom they are required to report incidents is the University Office of Equal Opportunity and Title IX.
Jesuit employees of the University have additional reporting responsibilities if they suspect or know of abuse of a minor by a Jesuit or that a Jesuit is engaged in minor pornography. Those incidents should be reported to civil authorities in the jurisdiction in which the abuse allegedly occurred, and to their local superior. Jesuit employees should consult the Jesuits' USA West Province policy on the matter for additional details.
Faculty Affairs, Faculty Development and the Office of Equal Opportunity and Title IX hosted two information sessions on the new law in late April 2022. A video from both sessions is available from this link (SCU sign-in required).
The sessions are led by W. Scott Lewis, J.D., Managing Partner with TNG, LLC, a national multidisciplinary risk management consulting and law firm with more than 5,000 education-sector clients. Mr. Lewis has conducted trainings for SCU faculty and staff to participate in the hearing panels required in our new Sexual Harrassment interim policy.
The University alerts new faculty of the obligation to report in new employee onboarding and orientation as well as quarterly email reminders of teaching expectations, and will incorporate the new legal obligation to report in its existing employee sexual harassment training program.
We have developed the following syllabus statement in dialogue with several faculty who have served as student advocates, and with the Faculty Development program:
This statement has been incorporated into the syllabus statement resources posted on the Provost Office "Teaching Expectations" web page. It revises the Discrimination, Harassment and Sexual Misconduct (Title IX) statement in light of the new state law (see the section, “Required Policy Information for all Course Syllabi”).
If a student reaches out to you during office hours, or via email, or in other communications, and it seems they will report an incident, you could say:
- I need to let you know that, as a faculty member, I am required to report any incident of sexual misconduct or harassment I learn about to our campus Title IX Office.
- This is about protecting and supporting you—making sure you know the resources available to you at the University, so that our campus can become a safer place.
- While I am not a confidential resource, I can point you to the people who are:
- Bree Van Ness, Assistant Director for Student Survivor Advocacy and Campus Support, SCU Wellness Center, 852 Market St, (408) 551-3307, firstname.lastname@example.org
- SCU Wellness Center
- Any individual (clergy, counselors) acting in a professional capacity for which confidentiality is mandated by law.
The appropriate governing board or body of each postsecondary institution shall implement, and at all times comply with, all of the following requirements at the institution (summarized here; see the law for additional information):
- It shall disseminate, by electronic or other means, a notice of nondiscrimination to each employee, each volunteer who will regularly interact with students, and each individual or entity under contract to perform any service involving regular interaction with students at the institution.
- It shall designate at least one employee of the institution to coordinate its efforts to comply with and carry out its responsibilities under this section. The employee may be the same individual as the institution’s federal Title IX coordinator. The employee shall have adequate training on what constitutes sexual harassment and on trauma-informed investigatory and hearing practices, and shall understand how the institution’s grievance procedures operate.
- It shall adopt rules and procedures within the policies required by Title IX of the Education Amendments of 1972 (20 U.S.C. Sec. 1681 et seq.) and Section 67386 for the prevention of sexual harassment (that also provide for a number of elements stipulated in the law).
- It shall adopt and publish on its internet website grievance procedures that provide for prompt and equitable resolution of sexual harassment complaints filed by a student against an employee or another student. (The grievance procedures shall satisfy a number of requirements stipulated in the law).
- It shall publish in a prominent place on its internet website, with accompanying text clearly associating them with the sexual harassment and sexual violence grievance processes, the name, title, and contact information, which shall include the telephone number, office location, and email address, of the Title IX coordinator or other designated employee, and any individual official within the institution with the authority to investigate complaints made pursuant to this section or to institute corrective measures such as sanctions, accommodations, or other forms of resolution of the complaint.
- It shall provide the training to each employee engaged in the grievance procedures related to sex discrimination, including sexual violence.
- If the institution has on-campus housing, it shall ensure that residential life student and nonstudent staff, or their equivalent, annually receive training on how to handle, in a trauma-informed manner, reports made to them of sexual harassment or sexual violence, and situations in which they are aware of sexual harassment or sexual violence, in student residential facilities.
- It shall notify employees of the obligation to report harassment to appropriate school officials.
- It shall provide training to all employees on the identification of sexual harassment, including the person to whom it should be reported. This paragraph does not require an institution to provide separate training for identification of sexual harassment. The school may include this requirement in existing employee training on sexual harassment.
All University employees are required to report child abuse and neglect (children are defined as persons younger than 18 years old).
The University strives to safeguard the well-being of all children, and requires all members of the University community who observe, have actual knowledge of, or reasonably suspect child abuse or neglect at a University facility or perpetrated by University personnel to promptly report the concern to appropriate law enforcement, external officials, and University officials.
The Child Abuse Neglect and Reporting Act (CANRA) requires that employers of mandated reporters promote identification and reporting of child abuse or neglect. Mandated Reporters under CANRA are responsible for reporting the incident themselves. They are not required to investigate any known or suspected cases of abuse.
It is the Policy of Santa Clara University that ALL UNIVERSITY EMPLOYEES, as well as volunteers and independent contractors who, in the course of their business or volunteer activity, have reasonable suspicion of child abuse or neglect, are required to make a report as outlined in this Policy. This Policy applies to all Santa Clara University locations and all University-sponsored or hosted programs, events, and activities, including study abroad programs. However, any information learned through any confidential communications made to a member of the clergy subject to the clergy-penitent privilege is not required to be reported.
The obligation to report applies only to students. But as with students, you want to be sure the person is OK and offer to support them, which may lead them to request your support if they go to their supervisor or the Office of Equal Opportunity and Title IX with a complaint. If you are a bystander and witness sexual harassment, you can report the incident to the supervisor of the unit where the harassment is occurring or directly to the Office of Equal Opportunity.