Definition of Sexual Harassment

The Department of Education’s Office for Civil Rights (OCR), the Equal Employment Opportunity Commission (EEOC), and the District of Columbia regard sexual harassment, a specific form of discriminatory harassment, as an unlawful discriminatory practice. As a result of the U.S. Department of Education’s Final Rule under Title IX of the Education Amendments of 1972 issued on May 19, 2020, the Institution must narrow both the geographic scope of its authority to act under Title IX and the types of “sexual harassment” that it must subject to its Title IX investigation and adjudication process. Only incidents falling within the Final Rule’s definition of sexual harassment will be investigated and, if appropriate, brought to a live hearing through the Title IX Sexual Harassment Policy defined below. Gallaudet University and the Clerc Center remains committed to addressing any violations of its policies, even those not meeting the narrow standards defined under the Title IX Final Rule. Specifically, the Institution has a Code of Conduct that defines certain behavior as a violation of campus policy, and a separate Sexual Misconduct Policy that addresses the types of sex-based offenses constituting a violation of campus policy, and the procedures for investigating and adjudicating those sex-based offenses. To the extent that alleged misconduct falls outside the Title IX Sexual Harassment Policy, or misconduct falling outside the Title IX Sexual Harassment Policy is discovered in the course of investigating covered Title IX misconduct, the institution retains authority to investigate and adjudicate the allegations under the policies and procedures defined within the Sexual Misconduct Policy through a separate grievance proceeding. The elements established in the Title IX Sexual Harassment Policy under the Final Rule have no effect and are not transferable to any other policy of the College for any violation of the Code of Conduct, employment policies, or any civil rights violation except as narrowly defined in this Policy. This Policy does not set a precedent for other policies or processes of Gallaudet University or the Clerc Center and may not be cited for or against any right or aspect of any other policy or process. Gallaudet has adopted the following definition of sexual harassment in order to address the unique environment of an academic community.  Any conduct on the basis of sex that meets the following definition may be considered a Title IX violation, and will be addressed using the appropriate Title IX procedures. Acts of sexual harassment may be committed by any person upon any other person, regardless of the sex, sexual orientation, and/or gender identity of those involved. Sexual Harassment, as an umbrella category, includes the actual or attempted offenses of sexual harassment, sexual assault, domestic violence, dating violence, and stalking, and is defined as conduct on the basis of sex that satisfies one or more of the following:

1. Quid Pro Quo:
   1. an employee of Gallaudet University/Clerc Center,
   2. conditions the provision of an aid, benefit, or service of Gallaudet University/Clerc Center,
   3. on an individual’s participation in unwelcome sexual conduct; and/or
2. Sexual Harassment:
   1. unwelcome conduct,
   2. determined by a reasonable person,
   3. to be so severe, and
   4. pervasive, and,
   5. objectively offensive,
   6. that it effectively denies a person equal access to the University or Clerc Center’s education program or activity.
3. Sexual assault, defined as:
   1. Sex Offenses, Forcible:
      1. Any sexual act* directed against another person,
      2. without the consent of the Complainant,
      3. including instances in which the Complainant is incapable of giving consent. *Sexual acts include: Forcible Rape:
         • 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,
         Forcible Sodomy:
         • Oral or anal sexual intercourse with another person,
         • forcibly,
         • and/or against that person’s will (non-consensually), or
         • not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
         Sexual Assault with an Object:
         • The use of an object or instrument to penetrate,
         • however slightly,
         • the genital or anal opening of the body of another person,
         • forcibly,
         • and/or against that person’s will (non-consensually),
         • or not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
      4. Forcible Fondling:
         • The touching of the private body parts of another person (buttocks, groin, breasts),
         • for the purpose of sexual gratification,
         • forcibly,
         • and/or against that person’s will (non-consensually),
         • or not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
   2. Sex Offenses, Non-forcible: Incest:
      • Non-forcible sexual intercourse,
      • between persons who are related to each other,
      • within the degrees wherein marriage is prohibited by District of Columbia law. Statutory Rape:
        • Non-forcible sexual intercourse,
        • with a person who is under the statutory age of consent of 16.
4. Dating Violence, defined as:
   1. violence,
   2. on the basis of sex,
   3. committed by a person,
   4. who is in or has been in a social relationship of a romantic or intimate nature with the Complainant.
      1. The existence of such a relationship shall be determined based on the Complainant’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. For the purposes of this definition—
      2. Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
      3. Dating violence does not include acts covered under the definition of domestic violence.
5. Domestic Violence*, defined as:
   1. violence,
   2. on the basis of sex,
   3. committed by a current or former spouse or intimate partner of the Complainant,
   4. by a person with whom the Complainant shares a child in common, or
   5. by a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner, or
   6. by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws (intrafamily offenses) of the District of Columbia, or
   7. by any other person against an adult or youth Complainant who is protected from that person’s acts under the domestic or family violence laws (intrafamily offenses) of the District of Columbia. *To categorize an incident as domestic violence, the relationship between the respondent and the complainant must be more than just two people living together as roommates. The people cohabitating must be current or former spouses or have an intimate relationship.
6. Stalking, defined as:
   1. engaging in a course of conduct,
   2. on the basis of sex,
   3. directed at a specific person, that
      1. would cause a reasonable person to fear for the person’s safety, or
      2. the safety of others; or
      3. Suffer substantial emotional distress. For the purposes of this definition—
         1. Course of conduct means two or more acts, including, but not limited to, acts in which the Respondent directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property.
         2. Reasonable person means a reasonable person under similar circumstances and with similar identities to the Complainant.
         3. Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.