Ohio Administrative Code › Title 3349 - Northeast Ohio Medical University › Chapter 3349-10 - Campus Safety › Section 3349-10-75 - Sexual harassment under Title IX

Current through all regulations passed and filed through July 1, 2024
(A) Purpose
The university is committed to maintaining
				
									a safe,
				nondiscriminatory environment in which students and employees of the
				university can work, learn, and participate in activities free from sexual
				harassment. Title IX of the education amendments of 1972 and its associated
				regulations prohibit discrimination on the basis of sex in any education
				program or activity receiving federal funds. The conduct outlined in this rule,
				committed against any students or employees of the university, are prohibited
				conduct under federal law.
(B) Scope
This rule applies to acts committed by students, employees, or
				visitors/vendors of the university regardless of gender identity or expression
				or sexual orientation. This rule defines prohibited conduct as it relates to
				sexual harassment under Title IX of the education amendments of 1972. Students
				and employees of the university may be victims of sexual harassment by
				individuals unaffiliated with the university. For the
				purposes of this rule, employees are full or part time faculty or staff
				members; students are those who are enrolled in one or more programs at the
				university; and visitors are those who are not obtaining a degree, attending
				classes, or directly employed by the university. Student employees are
				considered students for the purposes of this rule.
Formal complaints of sexual harassment filed by a complainant
				or signed by the Title IX coordinator will be resolved in accordance with the
				university's Title IX grievance procedures set forth in this rule. The Title IX
				grievance procedures have been developed to provide an equitable process for
				determining whether a violation of this rule has occurred, as well as to
				remediate the effects, and prevent the occurrence of, prohibited conduct in
				violation of this rule.
(C)
			 Definitions
(1) "Actual knowledge" refers to
			 notice of sexual harassment or allegations of sexual harassment to the Title IX
			 coordinator or any official with authority (OWA).
(2) "Complainant" refers to an individual who
			 is alleged to be the victim of conduct that could constitute sexual harassment.
			 Where the Title IX coordinator signs a formal complaint, the Title IX
			 coordinator is not a complainant or otherwise a party in the matter.
(3) "Coercion" for the purposes of this rule
			 refers to the intimidation, threats of the physical or psychological nature, or
			 pressure used to force another to engage in sexual acts.
(4) "Consent" for the purposes of this rule,
			 refers to permission or agreement to engage in sexual activity. Consent can be
			 given by words or actions as long as those words or actions create mutually
			 understandable permission and willingness to engage in sexual activity. Consent
			 must be active; silence cannot constitute consent nor can consent to one form
			 of sexual activity be implied as consent to another form of activity. Consent
			 can be withdrawn at any time and previous consent for a sexual act cannot imply
			 future consent. Consent for sexual activity is not present if an individual:
(a) Is in a state of incapacitation (from
			 alcohol or drug use or mental or physical impairment) whereas another
			 individual knows or should have reasonably known of the
			 incapacitation;
(b) Is
			 coerced;
(c) Is subjected to the
			 use of force or the threat of force;
(d) Is unconscious or unaware the act is
			 being committed; or
(e) Is unable
			 to consent due to age.
(5) "Course of conduct," as it relates to
			 stalking, 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.
(6) "Education program or
			 activity" refers to locations, events, or circumstances over which the
			 university exercised substantial control over both the respondent and the
			 context in which the sexual harassment occurred, including any building owned
			 or controlled by a student organization that is officially recognized by the
			 university.
(7) "Formal complaint"
			 refers to a document filed by a complainant or signed by the Title IX
			 coordinator alleging sexual harassment against a respondent and requesting that
			 the university address the allegation of sexual harassment.
(8) "Incapacitation" refers to the state of
			 substantial impairment when an individual is unable to make reasonable,
			 rational decisions because they lack the capacity to give knowing consent. For
			 the purposes of this rule, incapacitation includes individuals whose impairment
			 results from physical or mental disabilities, involuntary restraint, or the
			 consumption of alcohol or other drugs. Incapacitation cannot be used in a
			 defense for behavior that violates this rule.
(9) "Official with authority" refers to an
			 employee who has authority to institute corrective measures for sexual
			 harassment on behalf of the university. For the purposes of this rule, OWAs
			 include the Title IX coordinator, vice president of human resources, senior
			 executive director of academic affairs and student services, assistant dean of
			 students in the college of medicine, assistant dean of student success in the
			 college of pharmacy, and vice dean in the college of graduate
			 studies.
(10) "Reasonable person"
			 means a reasonable person under similar circumstances and with similar
			 identities to the victim.
(11)
			 "Respondent" refers to the person alleged to have engaged in conduct that could
			 constitute sexual harassment as defined in this rule. A respondent is presumed
			 not responsible for the alleged conduct until a determination is made in
			 accordance with this rule.
(12)
			 "Retaliation" refers to intimidation, threats, coercion, or discrimination
			 against any individual for the purpose of interfering with any right or
			 privilege secured by Title IX or because an individual made a report or
			 complaint, or participated or refused to participate in any Title IX grievance
			 process.
(13) "Sexual harassment,"
			 for the purposes of this rule, refers to conduct on the basis of sex which
			 occurs within the university's education program or activity against a person
			 in the united states, and satisfies one or more of the following:
(a) "Sexual harassment by quid pro quo" is an
			 employee of the university conditioning the provision of an aid, benefit, or
			 service of the university on an individual's participation in unwelcome sexual
			 conduct;
(b) "Sexual harassment by
			 hostile environment" is unwelcome conduct determined by a reasonable person to
			 be so severe, pervasive, and objectively offensive that it effectively denies a
			 person equal access to the university's education program or activity;
			 or
(c) Conduct that meets any of
			 the following definitions:
(i) "Sexual
			 assault" includes conduct that meets any of the following definitions:
(a) "Rape" means the carnal knowledge of a
			 person, without the victim's consent, 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. "carnal knowledge" means
			 the slightest penetration of vagina by the penis.
(b) "Sodomy" means non-consensual oral or
			 anal sexual intercourse with another person, 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.
(c) "Sexual assault with an object" means use
			 an object or instrument (other than a person's genitalia) to unlawfully
			 penetrate, however slightly, the genital or anal opening of the body of another
			 person, without the victim's consent, 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.
(d) "Fondling" means the touching of the
			 private body parts of another person for the purpose of sexual gratification,
			 without the victim's consent, 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.
(e) "Incest" means sexual intercourse between
			 persons who are related to each other within the degrees wherein marriage is
			 prohibited by law.
(f) "Statutory
			 rape" means sexual intercourse with a person who is under the statutory age of
			 consent.
(ii) "Dating
			 violence" means an act of violence committed by a person who is or has been in
			 a social relationship of a romantic or intimate nature with the victim. The
			 existence of such a relationship shall be determined by the length of the
			 relationship, the type of relationship, and the frequency of interaction
			 between the persons involved in the relationship.
(iii) "Domestic violence" refers to felony or
			 misdemeanor crimes 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.
(iv) "Stalking"
			 refers to engaging in a course of conduct directed at a specific person that
			 would cause a reasonable person with similar characteristics under similar
			 circumstances to:
(a) Fear for the person's
			 safety or the safety of others; or
(b) Suffer substantial emotional
			 distress.