What is Sex Discrimination? Sex discrimination is any action that adversely affects the employment or educational opportunities of a person due to his or her sex. This includes discrimination on the basis of pregnancy, in sports, in scholarship programs, and in decisions or actions at all operational levels on campus. Sex discrimination also encompasses harassment of an individual on the basis of sex. What is Sexual Misconduct? Sexual Misconduct is a broad term that identifies forms of discrimination and harassment based on sex including, sexual exploitation, non-consensual sexual contact, gender-based harassment, stalking – including cyber stalking. Sexual misconduct includes other acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex, even if those acts do not involve conduct of a sexual nature. What is Sexual Harassment? Sexual harassment includes but is not limited to: Gender-based harassment: harassment based on sex or gender, sexual orientation, gender identity, or gender expression, which may include acts of intimidation or hostility, whether verbal or non-verbal, graphic, physical, or otherwise, even if the acts do not involve conduct of a sexual nature. Quid-pro—quo: Sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when submission to such conduct is made a condition of the conferral of any benefit, or rejection of such advance, request, or conduct implies that a person will suffer adverse consequences from another person in an express or implied position of authority Hostile environment/unwelcome conduct: Conduct of a sexual nature or based on gender or sexuality that is severe, pervasive, and/or objectionably offensive defined by a reasonable person under similar circumstances so as to interfere with or limit the ability of a reasonable individual to participate in or benefit from a University program or activity. This may include unwanted, unwelcome, or inappropriate sexual or gender-based activities or comments. Sexual Assault: Any sexual penetration, however slight, of a person without that person’s consent. Any intentional, non-consensual sexual contact with an intimate body part of another or forcing another to have sexual contact with an intimate body part of oneself or another, with any object or body part, or any disrobing of another without consent. Dating Violence/Domestic Violence: Any action, statement, or use of force against a person where a previous or current personal, intimate, or special relationship exists (defined by marriage, civil union, dating, family membership, or co-habitation) which includes physical, sexual, emotional, economic, and/or psychological actions or threats of actions that a reasonable person in similar circumstances and with similar identities would find intimidating, terrorizing, or threatening. Such behaviors may include threats of violence to one's self or one's family member. Stalking: Purposefully or knowingly engaging in a stalking behavior directed at a specific person that would cause a reasonable person to fear for their safety or the safety of a third person or suffer other emotional distress. Such stalking behaviors include but are not limited to alarming conduct, following a specific person or otherwise communicating with a person repeatedly in a manner likely to cause fear for safety, or seriously annoy a reasonable person under similar circumstances. What is a Hostile Environment? Hostile environment: when such conduct has the purpose or effect of substantially interfering with an individual's academic or professional performance or creating an intimidating, hostile, or demeaning employment or educational environment. A cause of action is established if the complained-of-conduct would not have occurred but for the student or employee's gender, and it was severe or pervasive enough to make a reasonable person of the same sex believe that the conditions of learning and/or employment are altered and the environment is hostile or abusive. What is Consent? Consent, as defined in the Student Sexual Misconduct and Non-Discrimination Policy, is informed, voluntary and mutual, and may be withdrawn at any time. Consent is not obtained with express or implied force, coercion, intimidation, threat, or duress. Consent to a sexual act must be expressed, and be fully informed and a freely decided choice to participate in sexual contact or intercourse. Consent cannot be assumed or implied by silence or the absence of physical or verbal resistance. Consent is an affirmative, unambiguous and conscious decision. Consent to one type of sex act does not imply consent to other forms and must be ongoing throughout a sexual encounter. Past consent to sexual activity does not imply ongoing future consent with a person or consent to the same activity with another person. If a person is mentally or physically incapacitated or impaired so that a person cannot understand the fact, nature or extent of the sexual situation, there is no consent. This includes incapacitation by use of alcohol and/or drug consumption or being asleep or unconscious. Generally, the age of consent in New Jersey is 16. Please refer to NJ State Law for full consent and statutory rape laws. The following actions render consent null: Coercion: Coercion is the use of pressure to compel another individual to initiate or continue sexual activity against their will. Coercion can include a wide range of behaviors, including intimidation, manipulation, threats, and blackmail. A person’s words or conduct are sufficient to constitute coercion if they wrongfully impair another individual’s freedom of will and ability to choose whether or not to engage in sexual activity. Coercion renders an individual unable to consent. Force: Force is the use or threat of physical violence to overcome an individual’s freedom of will to choose whether or not to participate in sexual contact. Force renders an individual unable to consent. Incapacitation: A person who is incapacitated is not capable of giving valid, affirmative consent. Incapacitation is a state where one cannot make a rational, reasonable decision because they lack the ability to understand the who, what, when, where, why or how of the sexual activity. A person may be incapacitated as a result of a temporary or permanent mental or physical condition, sleep, or unconsciousness. A person may be incapacitated as a result of the consumption of alcohol or drugs. A person who is not incapacitated at the beginning of sexual activity, may eventually reach a state of incapacitation as the activity progresses due to alcohol or drug intake prior to or during the activity. Incapacitation is a state of impairment significant enough to render a person unable to understand the fact, nature, or extent of the sexual activity. For the purpose of this policy, the standard that shall be applied is whether or not a reasonable person would have known, based on the facts and circumstances presented, that the other person was incapacitated and therefore, not capable of giving consent. What is the Reasonable Person Standard? The Courts have recognized that the difficulty in defining the unwelcome, hostile, or offensive nature of an environment may lie in the fact that people may disagree as to what constitutes offensive, degrading conduct. In response to this key issue, the courts have adopted a "reasonable person" standard. Under this standard, a claim would be found to be harassment if a "reasonable person" would consider the action hostile or offensive. The reasonable person standard refers to a belief held, knowledge known, or action taken or not taken by an ordinary person under similar circumstances. What is the Preponderance of Evidence Standard? The preponderance of the evidence standard is utilized in the University investigation, adjudication, and grievance processes. The preponderance of evidence is a standard of proof in which the totality of the evidence demonstrates that an individual's version of events more likely than not occurred. The preponderance of the evidence is understood to require more than 50 percent certainty to determine responsibility (51% or greater). Who are Responsible Employees? With the exception of confidential employees, all faculty, staff and administrators are “Responsible Employees” and therefore, must report allegations of sexual harassment and/or sexual violence made by students to the Title IX Coordinator or other appropriate school designee their supervisor. All managers have a heightened duty to report any allegations of sexual harassment that they are made aware of to the Title IX Coordinator. Who are Confidential Employees? Confidential Employees are the Social Workers for Student Support & Resources and Counseling Health and Wellness staff. These employees are exempt from any Title IX reporting obligation; however, they can assist with available resources depending upon the circumstances. Who are Campus Security Authorities? Campus Security Authorities are defined as officials of an institution who have significant responsibility for student and campus activities, including, but not limited to, student housing, student discipline and campus judicial proceedings. Some examples of Campus Security Authorities include but are not limited to, University Police, Office of Residence Life, Office of Student Conduct and Dispute Resolution, Office of Campus Activities, Services and Leadership. Campus Security Authorities are also obligated to report allegations under the Jeanne Clery Act that are made in good faith (this can include sexual violence allegations). It is possible for an individual to be both a responsible employee and a campus security authority. If an individual is confused about whether he/she is a responsible employee, CSA, or both, please contact the Title IX Coordinator or his/her designee.
