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Discrimination vs. Harassment

Sexual Harassment Defined

Summary

Title IX of the Education Amendments Act of 1972 defines sexual harassment differently than
Title VII of the Civil Rights Act of 1964, but the U.S. Department of Education found no "inherent
conflict" between an employer's obligations under Title VII and Title IX. Therefore, institutions of
higher education that receive federal funds must respond to reports of workplace sexual
harassment prohibited by Title IX, or Title VII, or both (see below).

Title VII: Sexual Harassment

The U.S. Supreme Court defined sexual harassment prohibited by Title VII as unwelcome
sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual
nature that are:

• Explicitly or implicitly tied to denial or receipt of a job benefit or sanction (quid pro quo
sexual harassment)
• Sufficiently severe or pervasive so as to alter the conditions of an individual's
employment by creating an intimidating, hostile, or offensive working environment
(hostile environment sexual harassment)

[Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)]

Title IX: Sexual Harassment

Title IX prohibits the following types of sexual harassment when it is committed against a person
who is located in the United States and occurs in an educational program or activity:

Hostile Environment
• Title IX defines "hostile environment" sexual harassment as:
o Unwelcome conduct on the basis of sex that is so severe, pervasive, and
objectively offensive that it creates a "hostile environment," and
o Effectively denies a person equal access to an education program or activity
• This Title IX definition of "hostile environment" sexual harassment is more restrictive
than under Title VII in order to avoid infringing on academic freedom or free speech
rights in a higher education environment.

Quid Pro Quo

• An institution's employee conditioning a grade or other educational benefit or service on
an individual submitting to unwelcome sexual conduct is an abuse of authority, or "quid

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pro quo" sexual harassment. While this form of sexual harassment may involve verbal
conduct, it does not risk chilling protected speech or academic freedom because is
aimed at compelling a person to submit to unwelcome conduct as a condition of
maintaining their educational benefits.

Clery Act/VAWA Offenses

• A third category of per se Title IX sexual harassment was created for sexual misconduct
that meets the definition of these Clery Act/VAWA offenses:
o Rape and sexual assault
o Domestic violence and dating violence (also referred to as "relationship
violence")
o Stalking that is based on sex

Quid pro quo and Clery Act/VAWA offenses do not need to demonstrate severity,
pervasiveness, objective offensiveness, or denial of equal access to education because they do
not infringe upon First Amendment free speech rights and are inherently offensive and serious
enough to jeopardize a person's equal access to education.

Code of Federal Regulations

TITLE 34—EDUCATION
SUBTITLE B—REGULATIONS OF THE OFFICES OF THE DEPARTMENT OF EDUCATION
CHAPTER I—OFFICE FOR CIVIL RIGHTS, DEPARTMENT OF EDUCATION
PART 106—NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS
OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
SUBPART D—DISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR
ACTIVITIES PROHIBITED

§ 106.30 Definitions. [Effective Aug. 14, 2020.]

(a) As used in this part:

•
• Sexual harassment means conduct on the basis of sex that satisfies one or more of the
following:
o (1) An employee of the recipient conditioning the provision of an aid, benefit, or
service of the recipient on an individual's participation in unwelcome sexual
conduct;
o (2) Unwelcome conduct determined by a reasonable person to be so severe,
pervasive, and objectively offensive that it effectively denies a person equal
access to the recipient's education program or activity; or

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o (3) "Sexual assault" as defined in 20 U.S.C. 1092(f)(6)(A)(v), "dating violence" as

defined in 34 U.S.C. 12291(a)(10), "domestic violence" as defined in 34 U.S.C.
12291(a)(8), or "stalking" as defined in 34 U.S.C. 12291(a)(30).
o

…. [Content omitted for clarity.]

§ 106.44 Recipient's response to sexual harassment.

(a) General response to sexual harassment. A recipient with actual knowledge of sexual
harassment in an education program or activity of the recipient against a person in the United
States, must respond promptly in a manner that is not deliberately indifferent. A recipient is
deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light
of the known circumstances. For the purposes of this section, §§ 106.30, and 106.45,
"education program or activity" includes locations, events, or circumstances over which the
recipient exercised substantial control over both the respondent and the context in which the
sexual harassment occurs, and also includes any building owned or controlled by a student
organization that is officially recognized by a postsecondary institution. … [content omitted for
clarity]

…. [Content omitted for clarity.]

Title 34-CRIME CONTROL AND LAW ENFORCEMENT

Subtitle I-Comprehensive Acts
CHAPTER 121-VIOLENT CRIME CONTROL AND LAW ENFORCEMENT
SUBCHAPTER III-VIOLENCE AGAINST WOMEN

§ 12291. Definitions and grant provisions

(a) Definitions

• In this subchapter:
o …. [Content omitted for clarity]
o (8) Domestic violence
o The term "domestic violence" includes felony or misdemeanor crimes of violence
committed by a current or former spouse or intimate partner of the victim, by a
person with whom the victim shares a child in common, by a person who is
cohabitating with or has cohabitated with the victim as a spouse or intimate
partner, by a person similarly situated to a spouse of the victim under the
domestic or family violence laws of the jurisdiction receiving grant monies, or by
any other person against an adult or youth victim who is protected from that
person's acts under the domestic or family violence laws of the jurisdiction.
o (9) Dating partner

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o The term "dating partner" refers to a person who is or has been in a social
relationship of a romantic or intimate nature with the abuser, and where the
existence of such a relationship shall be determined based on a consideration of
–
▪ (A) the length of the relationship;
▪ (B) the type of relationship; and
▪ (C) the frequency of interaction between the persons involved in the
relationship.
o (10) Dating violence
o The term "dating violence" means violence committed by a person –
▪ (A) who is or has been in a social relationship of a romantic or intimate
nature with the victim; and
▪ (B) where the existence of such a relationship shall be determined based
on a consideration of the following factors:
• (i) The length of the relationship.
• (ii) The type of relationship.
• (iii) The frequency of interaction between the persons involved in
the relationship.
o …. [Content omitted for clarity]
o (30) Stalking
o The term "stalking" means engaging in a course of conduct directed at a specific
person that would cause a reasonable person to –
▪ (A) fear for his or her safety or the safety of others; or
▪ (B) suffer substantial emotional distress.
o …. [Content omitted for clarity]

…. [Content omitted for clarity.]

Crime Definitions From the Summary Reporting System (SRS) User Manual From the
FBI’s UCR Program
Rape

The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral
penetration by a sex organ of another person, without the consent of the victim.

Crime Definitions From the National Incident-Based Reporting System (NIBRS) User
Manual from the FBI’s UCR Program
Sex Offenses

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means, without permission. © Vector Solutions. All rights reserved.
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Any sexual act directed against another person, without the consent of the victim, including
instances where the victim is incapable of giving consent.

• A. Fondling — The touching of the private body parts of another person for the purpose
of sexual gratification, without the consent of the victim, including instances where the
victim is incapable of giving consent because of his/her age or because of his/her
temporary or permanent mental incapacity.
• B. Incest — Sexual intercourse between persons who are related to each other within
the degrees wherein marriage is prohibited by law.
• C. Statutory Rape — Sexual intercourse with a person who is under the statutory age of
consent.

The information contained in this program may not be reproduced in whole or in part, by any
means, without permission. © Vector Solutions. All rights reserved.