Employee Mandatory Reporting of Sexual Misconduct

Senate Bill 212: Employee Mandatory Reporting

What is Senate Bill 212?

Effective September 1, 2019, Texas law (SB 212) requires employees of Texas public institutions of higher education, including Del Mar College employees, to report observed incidents or credible information reasonably believed to be:

• Sexual harassment,
• Sexual assault,
• Dating violence, or
• Stalking

against a student or employee.

They must promptly report the incident to the College's Title IX Coordinator or Deputy Title IX Coordinator.

What happens if an employee doesn't make a report?

Effective January 1, 2020, it is a misdemeanor crime for an employee who fails to make a report or makes a false report. The charge will be for a person who is required to make a report and knowingly fails to make the report with the intent to harm or deceive, or knowingly makes a report that is false.

If it is shown that the employee concealed the incident that was required to be reported, the College must terminate any employee who it determines, in accordance with the College's disciplinary procedure, to have not made a required report. Student workers are not included as employees for the purposes of mandatory reporting.

Where should an employee file a mandatory report?

To report a Title IX incident, complete the online incident report form and select Title IX to indicate the type of incident report that you are submitting.

Once the report has been filed, the College will follow steps in the investigation process as required by House Bill 1735.

What are the definitions of sexual misconduct reportable under SB 212?

Dating Violence

Abuse or violence, or a threat of abuse or violence, against a person with whom the actor has or has had a social relationship of a romantic or intimate nature.
Source:Education Code 51.9366(a)(2); 19 TAC 3.13(a)

Sexual Assault

Sexual contact or intercourse with a person without the person's consent, including sexual contact or intercourse against the person's will or in a circumstance in which the person is incapable of consenting to the contact or intercourse.
Source: Education Code 51.9366(a)(4); 19 TAC 3.13(c)

Sexual Harassment

Unwelcome, sex-based verbal or physical conduct that:

• In the employment context, unreasonably interferes with an employee's work performance or creates an intimidating, hostile, or offensive work environment;
  or
• In the education context, is sufficiently severe, persistent, or pervasive that the conduct interferes with a student's ability to participate in or benefit from educational programs or activities at a postsecondary educational institution.

Source: Education Code 51.9366(a)(5); 19 TAC 3.13(d)

Stalking

A course of conduct directed at a person that would cause a reasonable person to fear for the person's safety or to suffer substantial emotional distress.
Source: Education Code 51.9366(a)(6); 19 TAC 3.13(e)

Will the employee receive retaliation for making a mandatory report?

SB 212 has an immunities provision which affects more than just employees of the College, and applies to any person:

• "acting in good faith who reports or assists in the investigation of" a mandatory report,
  or
• "who testifies or otherwise participates in a disciplinary process or judicial proceeding arising from" a mandatory report.

Those persons are "immune from civil liability, and from criminal liability for offenses punishable by fine only" that "might otherwise be incurred or imposed as a result of those actions."

SB 212 also protects those individuals from disciplinary action by the College in which they're enrolled or where they're employed. They are protected "for any violation […] of the institution's code of conduct reasonably related to the incident for which suspension or expulsion from the institution is not a possible punishment."

Colleges also cannot discipline or discriminate against "an employee who in good faith" makes a mandatory report or "cooperates with an investigation, a disciplinary process, or a judicial proceeding relating to" a mandatory report. These protections do not extend to an individual who perpetuates or allegedly perpetuates the reported incident.

Additionally, a related law (House Bill 1735) protects the confidentiality for students and employees who are alleged victims and for employees and students who report sexual harassment, sexual assault, dating violence, and stalking.