Section VI: Prohibited Conduct – Title IX

A. Title IX Prohibited Sex Discrimination and Sexual Harassment

Title IX of the Higher Education Amendments of 1972, 20 U.S. C. § 1681, et seq. (Title IX) prohibits discrimination on the basis of sex. Consistent with Title IX and corresponding regulations and applicable law, the College prohibits discrimination on the basis of sex with regard to any person in the United States, including exclusion from participation in, denial of benefits of, or discrimination under any education program or activity, including but not limited to, employment, academic, extracurricular, research, occupational training, or other education program or activity operated by the College.

Title IX sexual harassment is a form of Title IX sex discrimination and means conduct on the basis of sex (as defined by Title IX, including corresponding regulations and applicable law) that satisfies one or more of the following:

An employee of the College conditioning a provision of aid, benefit, or service of the College on an individual’s participation in unwelcome sexual conduct.
Unwelcome conduct that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the College’s education, program, or activity as determined by a reasonable person standard.
Other sexual offenses defined in the following statutes and detailed below: ‘‘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).
1. Sexual Assault (Title IX).
  1. Rape. Non-consensual penetration of a genital, anal, or oral opening of another person by use of an object, instrument, digit, or other body part. An “object” or “instrument” means anything other than a Respondent’s genitalia or other body part. This includes forcing an individual to use an object, instrument, or digit to penetrate another individual as well as oral penetration by a sex organ of another person.
  2. Fondling. The touching of the private body parts of another person for the purpose of sexual gratification without consent.
  3. Incest. Non-forcible sexual intercourse between persons who are related to each other within the degrees where marriage is prohibited by Michigan law.
  4. Statutory Rape. Non-forcible sexual intercourse with a person who is under the statutory age of consent of 16.
2. Dating Violence (Title IX). An assault or assault and battery committed on the basis of sex by a person: (1) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (2) 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; and (iii) the frequency of interaction between the persons involved in the relationship.
3. Domestic Violence (Title IX). Violence committed on the basis of sex, committed by a current or former spouse or intimate partner of the Complainant, by a person with whom the Complainant shares a child in common, or by a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner, or by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of Michigan, or by any other person against whose acts an adult or youth Complainant is protected under the domestic or family violence laws of Michigan.
4. Stalking (Title IX). Engaging in a course of conduct on the basis of sex and directed at a specific person that would cause a reasonable person to fear for their safety or the safety of others or suffer substantial emotional distress.

Title IX encompasses the prohibited conduct described in this section (VI.A.) if the prohibited conduct occurs:

On the basis of sex; and
Against a person in the United States; and
In the College’s education program or activity, meaning locations, events, or circumstances over which the College exercises substantial control over both the respondent and the context in which the Title IX prohibited conduct occurs; and
At the time of the filing of a formal complaint, the complainant is participating in or attempting to participate in a College education program or activity.

Allegations of prohibited conduct that do not meet all of the Title IX requirements may constitute other forms of prohibited conduct under separate Policy provisions.

B. Prohibited Discrimination on the Basis of Protected Characteristics

Separate from Title IX, there are other federal laws and state laws that prohibit discrimination and harassment on the basis of protected characteristics. Consistent with applicable federal, state, and local laws and regulations prohibiting discrimination, the College prohibits unlawful differential treatment of an individual(s) with respect to an individual’s participation in an education program or activity based on the individual’s actual or perceived legally protected characteristic of sex, sexual orientation, gender identity or expression, pregnancy or pregnancy related conditions, race, color, religion, age, national origin, height, weight, marital status, familial status, veteran status, genetic information, disability, or any other status protected by applicable state or federal law.

Discrimination includes unlawfully (1) excluding an individual from participation in; (2) denying the individual benefits of; or (3) adversely affecting a term, condition, or privilege of the individual’s participation in any College education program or activity on the basis of/because of such individual’s legally protected characteristic. This includes College employment, academics, extracurriculars, research, occupational training, or any other education program or activity and any other employment practice that is prohibited by applicable law.

C. Prohibited Sex-Based Harassment

‘‘Sex-based harassment’’ is prohibited conduct that is not Title IX sexual harassment or prohibited conduct that does not meet Title IX requirements. Sex-based harassment includes quid pro quo sexual harassment; hostile environment harassment based on sex, sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, gender identity or expression; and the four specific offenses referenced in the Jeanne Clery Disclosure of Campus Security Policy and Campus Crimes Statistics Act (‘‘Clery Act’’) as amended by the Violence Against Women Reauthorization Act of 2013.

Quid Pro Quo Sexual Harassment. An employee, agent, or other person authorized by the College to provide an aid, benefit, or service under the College’s education program or activity explicitly or impliedly conditioning the provision of such an aid, benefit, or service on a person’s participation in unwelcome sexual conduct. Quid pro quo harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.
- An example is a supervisor threatening to terminate, transfer, or demote an employee or student employee if sexual favors are not given or continued.
Hostile Environment Sexual Harassment. Unwelcome sexualized conduct or non-sexual conduct based on/because of a protected characteristic that, considering the totality of circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the College’s education program or activity, including employment. Hostile environment harassment includes such conduct that has the purpose or effect of unreasonably interfering with an individual’s performance or creating an intimidating, hostile, or offensive environment.
- In determining whether conduct constitutes harassment based on sex, sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, gender identity, or gender expression, the totality of the circumstances must be considered in a fact-specific inquiry including consideration of the following:
  - The nature of the conduct;
  - The degree to which the conduct affected the complainant’s ability to access the College’s education program or activity;
  - The type, frequency, and duration of the conduct;
  - The parties’ ages, roles within the College’s education program or activity, previous interactions, and other factors about each party that may be relevant to evaluating the effects of the conduct;
  - The location of the conduct; and
  - The context in which the conduct occurred.
- To establish a hostile environment, the offensive conduct must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive. The behavior must be objectively offensive to a reasonable person and subjectively offensive to the complainant. Sexual harassment is often a pattern of offensive behaviors. A single incident may also constitute sexual harassment if severe.
- Examples of harassing conduct based on sex may include:
  - Conduct of a sexualized nature, such as unwanted conduct expressing sexual attraction or involving sexual activity (e.g., “sexual conduct”); sexual attention; or discussing or displaying visual depictions of sex acts or sexual remarks.
  - Non-sexual conduct based on sex, such as sex-based epithets; sexist comments (such as remarks that a certain sex does not belong in management or in a particular profession); facially sex-neutral offensive conduct motivated by sex (such as bullying); or offensive jokes or teasing about sexual orientation or gender identity.
Sexual Assault. Sexual assault is an umbrella term that refers to the four specific Clery offenses.
1. Sexual Assault. 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 complainant.
2. Fondling. The touching of private body parts for the purpose of sexual gratification without complainant’s consent, including instances where complainant is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity. This includes nonconsensual touching of private body parts and/or having another person touch private body parts without their consent.
3. Incest. Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law in the state of Michigan.
4. Statutory Rape. Sexual intercourse with a person who is under the statutory age of consent of 16.
Dating Violence. Violence committed by a person (i) who is or has been in a social relationship of a romantic or intimate nature with the victim and (ii) where the existence of such a relationship shall be determined based on a consideration of the following factors: 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, dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. Dating violence does not include acts covered under the definition of domestic violence.
Domestic Violence. Felony or misdemeanor crime of violence committed by a person: (i) who is a current or former spouse or intimate partner of the victim; (ii) who shares a child in common with the victim; (iii) who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner; (iv) who is similarly situated to a spouse of the victim under the domestic or family violence laws of the State of Michigan or the state in which the crime of violence occurred; or (v) against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred.
Stalking. Engaging in a course of conduct directed at a specific person that would cause a reasonable person (i) to fear for their own safety or the safety of others or (ii) suffer substantial emotional distress. For the purposes of this definition:
- 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.
- Substantial emotional distress means significant mental suffering or anguish.
Sexual Exploitation. Taking non-consensual sexual advantage of another for one’s own benefit or for the benefit of anyone other than the person being exploited.
1. Sexual Voyeurism. Intentionally observing or allowing others to observe a person undressing or using the bathroom or engaging in sexual acts, without the consent of the person being observed. This includes taking pictures, video, or audio recording of another in a sexual act, or in any other sexually-related activity when there is a reasonable expectation of privacy during the activity, without the consent of all involved in the activity, or exceeding the boundaries of consent (such as allowing another person to hide in a closet and observe sexual activity, or disseminating sexual pictures or video without the person’s consent, whether dissemination occurs online or not), including the making or posting of revenge pornography.
2. Synthetic or Manipulated Sexual Images. Creating or sharing synthetic media or manipulated media of an actual person engaging in sexual activity or sexually explicit communication that never transpired or of an identifiable, actual person placed in a fictitious pornographic or nude (total or in a state of undress so as to expose a private body part) situation without the actual person’s consent and without a defense prescribed by the state of Michigan. Media includes images, videos, text, or audio representations. Identifiable includes by virtue of the actual person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable features, or from information displayed in connection with the digital depiction.
3. Infecting Another with a Sexually Transmitted Infection/Disease. Engaging in sexual activity with another person while knowingly having a sexually transmissible condition without informing the other person of the condition prior to engaging in the sexual activity that is likely to transmit the condition and not taking measures to prevent transmission, including viral suppression or being noninfectious, condom use, and partner PrEP use.
4. Causing Incapacitation. Causing incapacitation of another person (through alcohol, drugs, or other means) for the purpose of compromising that person’s ability to give consent to sexual activity.
5. Identity Misappropriation. Misappropriation of another person’s identity on apps, websites, or other venues designed for dating or sexual connections.
6. Extortion. Forcing a person to take an action against that person’s will by threatening to show, post, or share information, video, audio, or an image that depicts that person’s nudity or sexual activity.
7. Solicitation of a Minor. Knowingly soliciting a minor for sexual activity.
8. Prostituting. Prostituting another person.
9. Sex Trafficking. Use of force, fraud, or coercion to compel a person into commercial sex acts or labor against that person’s will.
10. Child Pornography. Knowingly creating, possessing, or disseminating child sexual abuse images or recordings.

D. Prohibited Discriminatory Harassment on the Basis of Race, Color, Religion, Age, National Origin, Height, Weight, Veteran Status, or Disability

Prohibited discriminatory harassment is unwelcome conduct on the basis of actual or perceived protected characteristic(s) that, based on the totality of the circumstances, is subjectively and objectively offensive and so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the College’s program or activity, including employment.

E. Prohibited Retaliation

Retaliation. An adverse action, including intimidation, threats, coercion, or discrimination, against any person by the College, a student, an employee, or other person authorized by the College to provide aid, benefit, or service under the College’s education program or activity (1) for the purpose of interfering with any right or privilege secured this Policy or law, or (2) because the person has reported information, made a complaint, testified, assisted, or participated or refused to participate in any manner in an investigation or proceeding under this Policy, including in an alternative resolution process or in grievance procedures, or in any other appropriate steps taken by the College to promptly and effectively end any prohibited discrimination in its education program or activity, prevent its recurrence, and remedy its effects. Nothing in this definition precludes the College from requiring an employee to participate as a witness in, or otherwise assist with, an investigation or proceeding.
Title IX Retaliation. For purposes of Title IX, retaliation means intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by Title IX or 34 C.F.R. Part 106.