B. Policy Against Sexual Harassment

1. Sexual Harassment is Illegal Under Federal and State Law

The Nevada System of Higher Education (NSHE) is committed to providing a place of work and learning free of sexual harassment, including sexual violence. Where sexual harassment is found to have occurred, the NSHE will act to stop the harassment, to prevent its recurrence, to remedy its effects, and to discipline those responsible in accordance with the NSHE Code or, in the case of classified employees, the Nevada Administrative Code. Sexual harassment, including sexual violence, is a form of discrimination; it is illegal.

No employee or student, either in the workplace or in the academic environment, should be subject to unwelcome verbal or physical conduct that is sexual in nature. Sexual harassment does not refer to occasional compliments of a socially acceptable nature. It refers to behavior of a sexual nature that is not welcome, that is personally offensive, and that interferes with performance. It is expected that students, faculty and staff will treat one another with respect.

3 Training, Employees and Students

All employees shall be given a copy of this policy and each institution shall maintain documentation that each employee received the policy. New employees shall be given a copy of this policy at the time of hire and each institution’s Human Resources Office shall maintain a record that each new employee received the policy.

Each institution shall provide this policy to its students at least annually and may do so electronically. Each institution shall include this policy and complaint procedure on its website and in its general catalog.

Each institution shall have an on-going sexual harassment prevention and awareness campaign and training program for employees and students. See also
Special Training with Regard to Sexual Violence, Section D(4)(c) below.
 

2. Policy Applicability and Sanctions

All students, faculty, staff, and other members of the campus community are subject to this policy. Individuals who violate this policy are subject to discipline up to and including termination and/or expulsion, in accordance with the NSHE Code (or applicable Student Code of Conduct) or, in the case of classified employees, the Nevada Administrative Code. Other, lesser sanctions may be imposed, depending on the circumstances.
 

4. Sexual Harassment Defined

Under this policy, unwelcome sexual advances, requests for sexual favors, and other visual, verbal or physical conduct of a sexual or gender bias nature constitute sexual harassment when:

1. Educational Environment:
   1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s academic status (“quid pro quo”);
   2. Conduct that is sufficiently severe, persistent or pervasive so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities or opportunities offered by the institution (“hostile environment”).
2. Workplace Environment:
   1. Submission to or rejection of the conduct is used as a basis for academic or employment decisions or evaluations, or permission to participate in an activity (“quid pro quo”); or
   2. Conduct that is sufficiently severe, persistent or pervasive so as to create a work environment that a reasonable person would consider intimidating, hostile or abusive, and which may or may not interfere with the employee’s job performance (“hostile environment”).

Sexual violence is a severe form of sexual harassment, and refers to physical sexual acts or attempted sexual acts perpetrated against a person’s will or where a person is incapable of giving consent, including but not limited to rape, sexual assault, sexual battery, sexual coercion or similar acts in violation of state or federal law.
 

5. Sexual Harassment Examples, Sexual Assault, Dating Violence, Domestic Violence, Stalking, Consent and Coercion Defined

a. Sexual Harassment Examples. Sexual harassment may take many forms— subtle and indirect, or blatant and overt. For example,

• It may occur between individuals of the opposite sex or of the same sex. 
• It may occur between students, between peers and/or co-workers, or between individuals in an unequal power relationship (such as by a supervisor with regard to a supervised employee or an instructor regarding a current student). 
• It may be aimed at coercing an individual to participate in an unwanted sexual relationship or it may have the effect of causing an individual to change behavior or work performance.
• It may consist of repeated actions or may even arise from a single incident if sufficiently severe.
• It may also rise to the level of a criminal offense, such as battery or sexual violence.
• Sexual violence is a physical act perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol or other factors which demonstrate a lack of consent or inability to give consent. An individual also may be unable to give consent due to an intellectual or other disability. Sexual violence includes, but is not limited to, rape, sexual assault, sexual battery, and sexual coercion.

Determining what constitutes sexual harassment under this policy is dependent upon the specific facts and the context in which the conduct occurs. Some conduct may be inappropriate, unprofessional, and/or subject to disciplinary action, but would not fall under the definition of sexual harassment. The specific action taken, if any, in a particular instance depends on the nature and gravity of the conduct reported, and may include disciplinary processes. Examples of unwelcome conduct of a sexual or gender related nature that may constitute sexual harassment may, but do not necessarily, include, and are not limited to:

Rape, sexual assault, sexual battery, sexual coercion or other sexual violence;

Sexually explicit or gender related statements, comments, questions, jokes, innuendoes, anecdotes, or gestures;

Other than customary handshakes, uninvited touching, patting, hugging, or purposeful brushing against a person’s body or other inappropriate touching of an individual’s body;

Remarks of a sexual nature about a person’s clothing or body;

Use of mail, text messages, social media, electronic or computer dissemination of sexually oriented, sex-based communications;

Sexual advances, whether or not they involve physical touching;

Requests for sexual favors in exchange for actual or promised job or educational benefits, such as favorable reviews, salary increases, promotions, increased benefits, continued employment, grades, favorable assignments, letters of recommendation;

Displaying sexually suggestive objects, pictures, magazines, cartoons, screen savers or electronic files;

Inquiries, remarks, or discussions about an individual’s sexual experiences or activities and other written or oral references to sexual conduct.

Even one incident, if it is sufficiently serious, may constitute sexual harassment. One incident, however, does not necessarily constitute sexual harassment.

b. Sexual Assault
Sexual Assault means a person subjects another person to sexual penetration, or forces another person to make a sexual penetration on himself or herself or another, or on a beast, against the will of the victim or under conditions in which the perpetrator knows or should know that the victim is mentally or physically incapable of resisting or understanding the nature of his or her conduct.

c. Dating Violence
Dating Violence is an act committed by a person who is or has been in a “dating relationship” with the reporting party:

1. The existence of such a relationship shall be determined based on the reporting party’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. “Dating relationship” means frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement. The term does not include a casual relationship or an ordinary association between persons in a business or social context; and
2. For the purpose of this definition: Dating violence is committed by a person who is or has been in a social relationship of a romantic or intimate nature with the reporting party. Dating violence includes, but is not limited to, mental, sexual or physical abuse or the threat of such abuse. Dating violence does not include acts covered under the definition of domestic violence.

For the purpose of complying with the requirements of this Section and 34 CFR 668.41, any incident meeting this definition is considered a crime for the purpose of Clery Act reporting.

d. Domestic Violence
Domestic Violence is an act that includes but is not limited to violence that occurs when a person commits one of the following acts against or upon the person’s spouse or former spouse, any other person to whom the person is related by blood or marriage, any other person with whom the person is or was actually residing, any other person with whom the person has had or is having a dating relationship, any other person with whom the person has a child in common, the minor child of any of those persons, the person’s minor child or any other person who has been appointed the custodian or legal guardian for the person’s minor child:

1. A battery.
2. An assault.
3. Compelling the other person by force or threat of force to perform an act from which the other person has the right to refrain or to refrain from an act which the other person has the right to perform. 
4. A sexual assault.
5. A knowing, purposeful or reckless course of conduct intended to harass the other person. Such conduct may include, but is not limited to:
   
   1. Stalking.
   2. Arson.
   3. Trespassing.
   4. Larceny.
   5. Destruction of private property.
   6. Carrying a concealed weapon without a permit.
6. A false imprisonment.
7. Unlawful entry of the other person’s residence, or forcible entry against the other person’s will if there is a reasonably foreseeable risk of harm to the other person from the entry.

e. Stalking
Stalking is defined to be when a person who, without lawful authority, willfully or maliciously engages in a course of conduct that would cause a reasonable person to feel terrorized, frightened, intimidated, harassed or fearful for the immediate safety of a family or household member, and that actually causes the victim to feel terrorized, frightened, intimidated, harassed or fearful for the immediate safety of a family or household member. Stalking includes but is not limited to:

1. Engaging in a course of conduct directed at a specific person that would cause a reasonable person to:
   1. Fear for the person's safety or the safety of others; or
   2. Suffer substantial emotional distress.
2. For the purpose of this definition:
   1. Course of conduct means two or more acts, including, but not limited to, acts in which the stalker 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. Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling. 
   3. Reasonable person means a reasonable person under similar circumstances and with similar identities to the victim.

f. Coercion
Coercion is:

• the use of violence or threats of violence against a person or the person's family or property;
• depriving or hindering a person in the use of any tool, implement or clothing;
• attempting to intimidate a person by threats or force, or
• when committed with the intent to compel a person to do or abstain from doing an act that the person has the right to do or abstain from doing.

In the context of sexual misconduct, coercion is the use of pressure to compel another individual to initiate or continue sexual activity against an individual’s 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 impair another individual’s freedom of will and ability to choose whether or not to engage in sexual activity. Examples of coercion include threatening to “out” someone based on sexual orientation, gender identity, or gender expression and threatening to harm oneself if the other party does not engage in the sexual activity.

g. Consent
Consent is defined as:

• An affirmative, clear, unambiguous, knowing, informed, and voluntary agreement between all participants to engage in sexual activity. Consent is active, not passive. Silence or lack of resistance cannot be interpreted as consent. Seeking and having consent accepted is the responsibility of the person(s) initiating each specific sexual act regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
• The existence of a dating relationship or past sexual relations between the participants does not constitute consent to any other sexual act. 
• The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity or gender expression. 
• Affirmative consent must be ongoing throughout the sexual activity and may be withdrawn at any time. When consent is withdrawn or cannot be given, sexual activity must stop.
• Consent cannot be given when a person is incapacitated. Incapacitation occurs when an individual lacks the ability to fully, knowingly choose to participate in sexual activity. Incapacitation includes impairment due to drugs or alcohol (whether such use is voluntary or involuntary); inability to communicate due to a mental or physical condition; the lack of consciousness or being asleep; being involuntarily restrained; if any of the parties are under the age of 16; or if an individual otherwise cannot consent.
• Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.