1. Policy Applicability and Sanctions
NSHE is committed to providing a place of work and learning free of discrimination on the basis of a person’s age (40 or older), disability, whether actual or perceived by others (including service-connected disabilities), gender (including pregnancy related conditions), military status or military obligations, sexual orientation, gender identity or expression, genetic information, national origin, race, color or religion (protected classes). Discrimination on the basis of a protected class, including unlawful harassment, which is a form of discrimination, is illegal under federal and state law. Where unlawful discrimination is found to have occurred, NSHE will act to stop the unlawful discrimination, to prevent its recurrence, to remedy its effects, and to discipline those responsible.
This policy also prohibits any discrimination based on a person’s clothing or traits historically associated with national origin, race, color or religion, including, but not limited to, hair texture, hairstyle or headwear.
No employee, student, or other member of the campus community, either in the workplace or in the academic environment, should be subject to unlawful discrimination.
It is expected that students, faculty and staff will treat one another and campus visitors with respect.
All students, faculty, staff, and other members of the campus community are subject to this policy. Students, faculty, or staff who violate this policy are subject to discipline up to and including termination and/or expulsion, in accordance with the NSHE Code (or in the case of students, any applicable student code of conduct) or, in the case of classified employees and law enforcement personnel, the Nevada Administrative Code or, in the case of Desert Research Institute (DRI) technologists, the Technologists Manual. Other lesser sanctions may be imposed, depending on the circumstances. Complaints may also be filed against visitors, consultants, independent contractors, volunteers, service providers and outside vendors whose conduct violates this policy, with a possible sanction of limiting access to institution facilities and other measures to protect the campus community.
Any employee, student, or other member of the campus community may utilize any of the complaint processes set forth in this policy.
2. Distribution of Policy; Training on the Prevention of Unlawful Discrimination and Harassment; and Annual Policy Review
a. Distribution of Policy
Annually, all employees shall be given a copy of this anti-discrimination policy, which may be provided electronically, and each institution shall maintain documentation that each employee received the anti-discrimination 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 documentation 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.
b. Training on Prevention of Unlawful Discrimination and Harassment
Each institution shall provide ongoing training on the prevention of unlawful discrimination and harassment and shall designate a person or office to be responsible for such training.
Institutions must provide new students and new employees primary prevention and awareness training that promotes awareness of rape, domestic violence, dating violence, sexual assault and stalking as defined in this policy. The training must address safe and positive options for bystander intervention to prevent harm, including how to intervene in risky situations; the recognition of abusive behavior; and how to avoid potential attacks.
Within six months after an employee is initially appointed to NSHE, the employee shall receive training regarding the prevention of unlawful discrimination and harassment, including primary prevention and awareness training. At least once every two years after the appointment, an employee shall receive training concerning the prevention of unlawful discrimination and harassment.
Incoming freshmen and transfer students within their first semester of enrollment shall receive training regarding the prevention of unlawful discrimination and harassment, including primary prevention and awareness training.
See also Special Training with Regard to Sexual Violence in Subsection b of Subsection 3 of Subsection c below.
c. Annual Policy Review
No later than the end of each calendar year, each institution’s Title IX Coordinator shall review and provide to NSHE suggestions for changes to this policy. NSHE shall review and consider the suggested changes and propose policy revisions to the Board of Regents, as appropriate, at the last regular Board meeting of the fiscal year.
3. Discriminatory Acts
It is illegal to discriminate on the basis of age (40 or older), disability (including service-connected disabilities), gender (including pregnancy related conditions), military status or military obligations, sexual orientation, gender identity or expression, genetic information, national origin, race, color, or religion in any aspect of employment or education, such as:
- Application, hiring, background checks, discipline, and firing;
- compensation, assignment, or classification of employees;
- transfer, promotion, layoff, or recall;
- job advertisements;
- recruitment;
- testing
- grading
- acceptance or participation in an academic program or school activity;
- use of employer's facilities;
- training programs;
- fringe benefits;
- pay, retirement plans, and disability accommodations or leave; or
- other terms and conditions of employment.
Determining what constitutes unlawful discrimination under this policy will be accomplished on a case- by-case basis and depends 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 within the scope of unlawful discrimination. The specific action taken, if any, in a particular instance depends on the nature and gravity of the conduct reported and may include anti-discrimination related disciplinary processes.
Discriminatory acts also include:
- discrimination on the basis of a person’s age (40 or older), disability ( including service-connected disabilities), gender (including pregnancy related conditions), military status or military obligations, sexual orientation, gender identity or expression, genetic information, national origin, race, color, or religion;
- retaliation against an individual for reporting an incident or filing a charge of unlawful discrimination, including unlawful harassment; participating in an investigation, hearing, or other related administrative process; or opposing discriminatory acts;
- employment or education decisions based on stereotypes or assumptions about the abilities, traits or performance of individuals of a certain age (40 or older), disability (including service-connected disabilities), gender (including pregnancy related condition), military status or military obligations, sexual orientation, gender identity or expression, genetic information, national origin, race, color, or religion; and
- “harassment,” which refers to unwelcome conduct that is based on a person’s age (40 or older), disability (including service-connected disabilities), gender (including pregnancy related conditions), military status or military obligations, sexual orientation, gender identity or expression, genetic information, national origin, race, color, or religion. Harassment becomes unlawful where: 1) enduring the offensive conduct becomes a condition of employment or educational pursuits, or 2) the conduct is severe, persistent, or pervasive enough to create a work or educational environment that a reasonable person would consider intimidating, hostile, offensive, or abusive. Examples of unwelcome conduct that, if severe, persistent, or pervasive could constitute harassment, include but are not limited to: slurs, jokes, graffiti, offensive or derogatory comments, or other verbal or physical conduct that is unwelcome.
This behavior is unacceptable in the workplace and the academic environment. Even one incident, if it is sufficiently serious, may constitute unlawful discrimination. One incident, however, does not necessarily constitute unlawful discrimination.
4. Non-Title IX Sexual Harassment Defined
Outside of the Title IX context, 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:
a. In the education environment
- Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's academic status ("quid pro quo"); or
- Conduct, viewed under an objective standard, 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").
b. In the workplace environment
- 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
- Conduct, viewed under an objective standard, is sufficiently severe, persistent or pervasive so as to create an intimidating, hostile or abusive work environment, which may or may not interfere with the employee’s job performance (“hostile environment”).
5. Non-Title IX Sexual Harassment Examples
a. Sexual Harassment Examples Outside of the Title IX Context
Sexual harassment may take many forms – subtle and indirect, or blatant and overt. For example:
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It may occur between individuals of the opposite sex or the same sex.
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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).
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It may be aimed at coercing an individual to participate in an unwantedsexual relationship or it may have the effect of causing an individual to change behavior or workperformance.
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It may consist of repeated actions or may even arise from a single incident if sufficientlysevere.
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It may also rise to the level of a criminal offense, such as battery or sexual violence.
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Sexual violence, which 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. A person may be incapable of giving consent due to the use of drugs or alcohol, age, an intellectual or other disability, or other factors, which demonstrate a lack of consent or inability to give consent.
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, dating violence, domestic violence, stalking, other sexual violence;
- Stealthing, including the intent to remove or damage a contraceptive device without the knowledge or consent of the other participant while engaging in a sexual act;
- 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, or other electronic or computer sources for nonconsensual 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 electronicfiles;
- 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.
6. Sexual Assault, Dating Violence, Domestic Violence, Stalking, Coercion and Consent Defined
a. Sexual Assault
“Sexual assault” means an offense that meets the definition of rape, fondling, incest, or statutory rape as used in the Federal Bureau of Investigation’s Uniform Crime Reporting Program.
“Rape” means 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, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
“Fondling” means 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 or physical incapacity.
“Incest” means sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
“Statutory rape” means sexual intercourse with a person who is under the statutory age of consent (16 years old).
b. Dating Violence
“Dating violence” means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim, and 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 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.
c. Domestic Violence
“Domestic violence” means 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.
d. Stalking
“Stalking” means engaging in a course of conduct on the basis of sex directed at a specific person that would cause a reasonable person to fear for the person’s safety or the safety of others, or suffer substantial emotional distress.
e. Coercion
“Coercion” means 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 through words, conduct or pressure by:
- 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;
- compelling another individual to initiate or continue sexual activity against an individual’s will; or
- 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.
Coercion can include a wide range of behaviors, including intimidation, manipulation, threats, and blackmail.
f. Consent
Conduct is unwelcome if it is done in the absence of consent.
“Consent” means 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.
- 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 it is the result of any coercion, intimidation, force, deception, or threat of harm.
- 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.
- The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity or gender expression.