VII. Definitions

A. Prohibited Conduct Definitions

Prohibited Conduct means one or more categories of prohibited behavior including:

• Discrimination (including Disparate Treatment);
• Discriminatory Harassment;
• Sex Discrimination
• Sex-Based Harassment, including
  • Quid Pro Quo Sex-Based Harassment,
  • Hostile Environment Sex-Based Harassment,
  • Sexual Assault,
  • Dating Violence,
  • Domestic Violence,
  • Stalking (based on sex), and
• Stalking
• Retaliation; and
• Violation of Protective Measures.

Definitions for each of the types of Prohibited Conduct are provided below.

Discrimination means subjecting an individual or class of individuals to adverse action, including treating an individual or class of individuals differently (“Disparate Treatment”) on the basis of a Protected Class.

When Discrimination is based on sex, including sex stereotypes, sex characteristics, sexual orientation, and/or gender identity; Parental, Family, or Marital Status; and/or Pregnancy or Related Conditions, it is considered Sex Discrimination. Sex-Based Harassment, including Sexual Assault, Dating Violence, Domestic Violence, and Stalking (based on sex), is a form of Sex Discrimination, but separately defined under this Policy.

This definition incorporates all exceptions under applicable Title IX regulations, including specifically 34 C.F.R. § 106.31.

Discriminatory Harassment means unwelcome conduct of a verbal, nonverbal, or physical nature, including electronic communication, on the basis of a Protected Class, when such conduct

• Based on the totality of the circumstances, evaluated subjectively and objectively, is sufficiently severe or pervasive that it limits or denies a person’s ability to participate in or benefit from any University Program or Activity through the creation of a Hostile Environment.

Discriminatory Harassment and Sex-Based Harassment are different offenses under this Policy. Discriminatory Harassment does not include conduct that meets the definition of Sex-Based Harassment under this Policy.

Sex-Based Harassment means any harassment based on sex, including sex stereotypes, sex characteristics, sexual orientation, gender identity, and/or Pregnancy or Related Conditions, that falls into one or more of the following categories:

1. An Employee, agent, or other person authorized by the university to provide an aid, benefit, or service under any University Program or Activity explicitly or impliedly conditions the provision of such an aid, benefit, or service on a person’s participation in unwelcome sexual conduct (“Quid Pro Quo Sex-Based Harassment”);
2. Unwelcome sex-based conduct that, based on the totality of the circumstances, evaluated subjectively and objectively, is sufficiently severe or pervasive that it limits or denies a person’s ability to participate in or benefit from any University Program or Activity (“Hostile Environment Sex-Based Harassment”). Whether a Hostile Environment is created is a fact-specific inquiry that includes consideration of the following:
   • The degree to which the conduct affected the Complainant’s ability to access any University Program or Activity;
   • The type, frequency, and duration of the conduct;
   • The parties’ ages, roles within the University’s Programs or Activities, 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; and/or
   • Other Sex-Based Harassment in the University’s Programs or Activities.
     
     Examples of conduct that may constitute Hostile Environment Sex-Based Harassment include, but are not limited to:
   • Unwanted intentional touching that otherwise does not typically constitute Sexual Assault, defined in this Policy;
   • Unwanted sexual advances, including repeated unwanted requests for dates, or repeated unwanted requests for sexual contact;
   • Unwanted written, verbal, or electronic statements of a sexual nature, including sexually suggestive comments, jokes, videos or innuendos;
   • Exposing one’s genitalia, breasts, or buttocks, to another; and/or
   • Touching oneself sexually for others to view.

3. Sexual Assault, Dating Violence, Domestic Violence, Sexual Exploitation and Stalking (based on sex). Each of these forms of Sex-Based Harassment are separately defined below.

Sexual Exploitation means intentionally or knowingly taking sexual advantage of another person or violating the sexual privacy of another when Consent is not present. Sexual Exploitation is a form of Sex-Based Harassment and includes, but is not limited to, the following actions (including when they are done via electronic means, methods, or devices):

• Engaging in sexual voyeurism, including observing or permitting others to witness or observe the sexual or intimate activity (e.g., disrobing, bathing, toileting) of another person without that person’s Consent;
• engaging in indecent exposure, or exposing intimate parts (including genitalia, groin, breasts, and/or buttocks), or causing another to expose intimate parts, when Consent is not present;
• recording or distributing information, images, or recordings of any person engaged in sexual or intimate activity in a private space without that person’s Consent;
• prostituting another individual;
• causing Incapacitation of another person (through alcohol, drugs, or other means) for the purpose of compromising that person’s ability to give Consent to non-consensual sexual activity; or
• actively aiding or assisting another person in committing an act of Sex-Based Harassment, including Sexual Assault, Dating Violence, Domestic Violence, and/or Stalking.

Sexual Assault means a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation, which includes the following acts:

1. Rape means the carnal knowledge of a person, without the Consent of the victim, including instances where the person is incapable of giving consent because of their age or temporary or permanent mental or physical incapacity;

2. Sodomy means oral or anal sexual intercourse with another person, without the Consent of the victim, including instances where the person is incapable of giving consent because of their age or temporary or permanent mental or physical incapacity;

3. Sexual Assault with an Object means to use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the Consent of the victim, including where the person is incapable of giving consent because of their age or temporary or permanent mental or physical incapacity;

4. 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 where the person is incapable of giving consent because of their age or temporary or permanent mental or physical incapacity;

5. Incest means sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law; or

6. Statutory Rape means nonforcible sexual intercourse with a person who is under the statutory age of Consent in the applicable jurisdiction.

    

   In the Commonwealth of Pennsylvania, the age of Consent for sexual activity is 16. Minors aged 16 years of age or older can legally consent to sexual activity with anyone they choose, as long as the other person does not have authority over them as defined in Pennsylvania’s institutional sexual assault statute. Minors under the age of 13 cannot consent to sexual activity. Minors aged 13-15 years old cannot consent to sexual activity with anyone who is 4 or more years older than they are at the time of the activity.

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 is determined based on a consideration of the length, type, and frequency of interactions between the persons involved in the relationship.

Domestic Violence means  a felony or misdemeanor crime committed by a current or former spouse or intimate partner of the victim under the family or domestic violence laws of the state, or by a person similarly situated to a spouse 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; or by any other person against an adult or youth victim who is protected from that person's acts under the family or domestic violence laws of the jurisdiction.

Stalking means engaging in a course of conduct 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. Stalking based on sex is a form of Sex-Based Harassment.

Retaliation means intimidation, threats, coercion, discrimination or other adverse action against any person by the university, a Student, or an Employee, or another person authorized by the university to provide aid, benefit, or service under the University’s Programs or Activities, for the purpose of interfering with any right or privilege secured by applicable federal, state, or local discrimination laws (e.g., Title IX of the Civil Rights Act of 1972, Title VI of the Civil Rights Act of 1964, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Pennsylvania Human Relations Act, etc.), or because the person has reported information to the university, to an external agency, or to law enforcement; made a Complaint; testified, assisted, participated, or refused to participate, in any manner in an investigation, proceeding, hearing, or alternative resolution under this Policy. 

Retaliation includes retaliation by peers (“Peer Retaliation”), such as retaliation by a student against another student but also Retaliation by a student against an employee, or by an employee against a student, as well as by an employee against another employee of more or less senior role. An individual need not be a Complainant or Respondent to have committed or been affected by Retaliation. It is not Retaliation for the university to require an employee, or other person authorized by the university to provide aid, benefits, or services as part of University’s Programs or Activities to participate as a witness in, or otherwise assist with, any investigation or adjudication under this Policy.

A finding of Retaliation under this Policy is not dependent on a finding that any alleged underlying Prohibited Conduct occurred. Retaliation is also prohibited by the university’s Policy Against Retaliation.

Similarly, charging an individual with a code of conduct violation for making an allegedly materially false statement in bad faith in a Report, Complaint, or in the course of a grievance proceeding under this Policy does not constitute prohibited Retaliation, provided, however, that a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith. Retaliation also does not include pursuit of civil, criminal, or other legal action, internal or external to the university.

Violation of Protective Measures
Any violation of an agreement or order that limits an individual’s contact or interactions with another individual. Such agreement or order may have been issued under the authority of the university; another institution; or a local, state, or federal government or court.

B. Definitions Relating to Consent

Consent means a knowing and voluntary agreement to engage in sexual activity at the time of the activity. In order to be valid, consent must be knowing, voluntary, active, present, and ongoing. Consent should be demonstrated through mutually understandable words or actions.

• Silence, remaining still or inactive (passive), or not actively resisting sexual activity does not constitute consent.
• Consent to engage in one sexual activity does not mean consent to engage in another sexual activity. Consent must be obtained each time, at each step of sexual activity.
• Prior consent does not mean future consent. Consent must be obtained each time, at each step of sexual activity, even for those in an ongoing sexual relationship.
• Consent can be withdrawn at any time. If one individual withdraws consent through clear words or actions, the other person must cease sexual activity immediately.
• Consent cannot be obtained through Force, Incapacitation, or Coercion (as defined herein).

Consent may be invalid where one party has lied to or knowingly deceived the other party as to the use of internal or external condoms or other single-use devices used to prevent the spread of sexually transmitted infections during a sexual encounter.

Force means using physical control (such as restraining a person), physical violence (such as hitting, choking, or displaying a weapon), or threats of either, to cause a person to submit to unwanted sexual activity.>

Coercion means using an unreasonable amount of pressure or threats that would overcome the will of a Reasonable Person and cause them to submit to unwanted sexual activity.

Coercion requires more than an attempt to persuade someone to engage in sexual activity. Coercion can include threats, such as threats to cause academic, employment, reputational, or economic harm. When one person expresses that they do not consent to sexual activity or are withdrawing consent for sexual activity, applying continued pressure in order to get the person to submit to unwanted sexual activity can be considered Coercion.

Incapacitation means that a person lacks the ability to make informed, deliberate choices about whether or not to engage in sexual activity. A person is Incapacitated – unable to give consent – because they are:

• under the age of consent (generally 16 years of age in Pennsylvania; see definition of Statutory Rape for additional information);
• physically or mentally helpless;
• asleep or unconscious; or
• unaware that sexual activity was requested, suggested, initiated and/or is taking place.

A person may be Incapacitated by the use of alcohol or other drugs. Incapacitation is a state beyond intoxication or drunkenness. A person is not necessarily Incapacitated solely as a result of drinking or using drugs; the level of impairment must be significant enough to render the person unable to give Consent.

For example, a person who is Incapacitated may not be able to answer some or all of the following questions:

• Do you know where you are?
• Do you know how you got here?
• Do you know what is happening?
• Do you know whom you are with?

A person who is Incapacitated may also demonstrate physical signs including but not limited to:

• slurred or incomprehensible speech;
• unsteady manner of walking or inability to walk; and/or
• vomiting or incontinence (a lack of voluntary control over urination and/or defecation).

If a person under the influence of alcohol or drugs decides to participate in sexual activity that they would not participate in while sober, it does not necessarily mean that the person was Incapacitated or that the Consent was not valid.

Importantly, being impaired by alcohol or other drugs is not a defense to a failure to obtain Consent.

C. Protected Class Definitions

Protected Class
Consistent with the university’s Statement of Assurance, “Protected Class” means any legally-protected characteristic, including race, color, national origin, sex (including sex stereotypes, sex characteristics, sexual orientation, gender identity, and pregnancy or related conditions), disability, age, parental status, family status, marital status, religion, creed, ancestry, belief, veteran status, genetic information or any other class protected from discrimination under federal, state, or local laws or executive orders.

The following definitions of specific categories of Protected Classes are provided as a helpful resource.  To the extent these definitions are inconsistent with any applicable federal, state, or local law the university will apply the applicable legal definition.

Expressing a political view or a view on world events will not be cause alone for determination that behavior is Prohibited Conduct under this Policy.

Race means the ancestry or physical or cultural characteristics associated with a certain race, such as skin color, hair texture or styles, or certain facial features.

Color means a person’s pigmentation, complexion, or skin shade or tone.

National Origin means a group of people sharing a common language, culture, ancestry, race, and/or other social characteristics.

Sex means sex stereotypes, sex characteristics, sexual orientation, gender identity, and/or pregnancy or related conditions.

Sexual Orientation means a person’s actual or perceived predisposition or inclination toward a particular type of sexual activity or behavior.

Gender Identity means an individual’s sense of their gender, which may or may not be different from their sex assigned at birth.

Sex Stereotypes means fixed or generalized expectations regarding a person’s aptitudes, behavior, self-presentation, or other attributes based on sex.

Sex Characteristics means physiological sex-based characteristics including, but not limited to, a person’s anatomy, hormones, and chromosomes associated with male or female bodies and intersex traits.

Pregnancy or Related Condition means (1) Pregnancy, childbirth, termination of pregnancy, or lactation; (2) Medical conditions related to pregnancy, childbirth, termination of pregnancy, or lactation; (3) Recovery from pregnancy, childbirth, termination of pregnancy, lactation, or related medical conditions. 

Note, in some jurisdictions, including the City of Pittsburgh, the “partner” of a person who is pregnant or has a pregnancy related condition is protected from discrimination and may be entitled to certain reasonable accommodations.  For more information, please see Human Resource’s Pregnancy Support and Accommodations Policy [pdf].   

Parental Status means the status of a person who, with respect to another person who is under the age of 18 or who is 18 or older but is incapable of self-care because of a physical or mental disability, is (1) a biological parent, (2) an adoptive parent, (3) a foster parent, (4) a stepparent, (5) a legal custodian or guardian, (6) in loco parentis with respect to such person, or (7) actively seeking legal custody, guardianship, visitation, or adoption of such person.

Marital Status means the state of being married or not married.

Family Status refers to the configuration of a person’s family or their role in a family.

Disability means a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. 

Age
How old a person is.

Religion means all aspects of religious observance, religious practice, religious creed, and religious belief or nonbelief, as defined under Title VII of the Civil Rights Act of 1964 and similar federal, state and local religious discrimination laws.

Ancestry means the common physical, cultural or linguistic characteristics of a person’s ancestors.

Veteran means a person who served in any branch of the U.S. military.

Genetic Information means with respect to any person, information about (i) such person’s genetic tests, (ii) the genetic tests of family members of such person, and (iii) the manifestation of a disease or disorder in family members of such person.

D. Policy Definitions

Advisor means, an individual who provides support and advice for the Complainant or Respondent. The Complainant and Respondent may have an Advisor of their choice, who may be, but is not required to be, an attorney.

Complainant means a Student, Employee, or other person who is alleged to have been subject to conduct that could constitute Prohibited Conduct under this Policy. In some cases, a Complainant may be different from the person who initially reports information to the university. In the event a Complaint is brought by the IEX Office, the individual affected by the alleged Prohibited Conduct that is the subject of the Complaint remains the Complainant, and the Civil Rights Coordinator does not become the Complainant.

Disciplinary Sanctions
Consequences imposed on a Respondent following a determination that the Respondent is responsible for having committed Prohibited Conduct.

Employee means person who is employed by the university to perform one or more of the following roles: regular instructional faculty, supplemental instructional faculty, research track faculty, visiting faculty, librarians, archivists, curators, graduate student instructors, graduate student staff assistants, graduate student research assistants, postdoctoral research fellows, and all regular and temporary Staff.

Faculty/Faculty Member means all individuals who hold appointments on the tenure-track, research-track, teaching-track, librarian/archivist-track, and special faculty track of the university, as well as individuals holding emeritus faculty status.

Complaint means an oral or written request to the university that objectively can be understood as a request for the university to investigate and make a determination about alleged Prohibited Conduct, as set forth in the procedures outlined in Section VI.  It is the policy of the university to confirm a Complainant’s request in writing prior to initiating the grievance procedures.  A Complaint can be made by a Complainant¹ or the IEX Office as set forth in Section VI.A. A Complainant must have been enrolled, employed, or otherwise participating or attempting to participate in the university’s Programs or Activities at the time the alleged Prohibited Conduct occurred in order to file a Complaint under this Policy, although the Complainant need not be enrolled, employed, or otherwise participating or attempting to participate in the university’s Education Program or Activity at the time the Complaint is made. constitute Prohibited Conduct, the Title IX Coordinator has discretion to file a Complainant, as detailed in Section VI.A, even if the report was not submitted by an individual who is participating or attempting to participate in the university’s Education Program or Activity. With respect to allegations of Sex Discrimination other than Sex-Based Harassment, a Complaint may be brought by any Student or employee, or any other person who was participating or attempting to participate in the Education Program or Activity at the time the alleged conduct took place.

Preponderance of the Evidence means to prove that something is more likely than not.

Reasonable Person means a person using average care, intelligence, and judgment in the known circumstances.

Relevant
Related to the allegations of Prohibited Conduct at issue and whether or not the alleged Prohibited Conduct occurred. Questions are Relevant if they may aid in showing whether the alleged Prohibited Conduct occurred, and evidence is Relevant if it may aid a decisionmaker in determining whether the alleged Prohibited Conduct occurred. The following evidence is impermissible (and will not be considered Relevant) even if it would otherwise be considered Relevant:

• evidence protected under a privilege recognized by federal or state law, unless the person holding the privilege has waived it voluntarily;
• records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to a Party or witness, unless the person has voluntarily consented, in writing, to the use of such records in the Grievance Procedures; and/or
• evidence and questions about the Complainant’s sexual interests or prior sexual conduct, unless:
  • offered to prove that someone other than the Respondent committed the conduct alleged, or
  • if concerning specific incidents of prior sexual activity with the Respondent which are offered to prove consent.

Such impermissible evidence will not be accessed, considered, disclosed, or  used, except to determine whether one of the preceding exceptions applies.

Remedies
Measures provided, as appropriate, to a Complainant or other person whose equal access to the university’s Programs and Activities was determined to have been limited or denied by Prohibited Conduct, in order to restore or preserve that person’s access.

Report
Any notice of conduct that may constitute Prohibited Conduct. A Report may come from any individual, not just a Complainant. Not every Report is or will result in a Complaint.

Respondent means an individual who is reported to have engaged in Prohibited Conduct. In the event that a Complaint alleges that a university policy or practice discriminates on the basis of Protected Class, the university is not considered a Respondent. In such cases, the university will follow this Policy, including the Grievance Procedures, although the university will, necessarily, not be entitled to certain procedural rights and steps afforded to individual Respondents. In the event a Complaint against an individual Respondent is based on actions the Respondent took in accordance with a university policy or practice, the Complaint may, in the university’s sole discretion, be amended to substitute the university as Respondent. This determination will be made after a consideration of factors including, but not limited to, whether the individual was, in fact, following the university policy or practice; what actions the individual took; and whether the individual could be subject to Disciplinary Sanctions.

Staff/Staff Member means all Employees of the university who do not hold faculty appointments. Staff does not include individuals whose primary relationship with the university is as a Student.

Student means a person who gained admission to the university.

University's Programs or Activities
Conduct that takes place in the “University’s Programs or Activities” means conduct that is subject to the university’s disciplinary authority and which occurs in the United States, including on-campus, or, if applicable, in any building owned or controlled by a student organization recognized by the university. Conduct is subject to the university’s disciplinary authority if it occurs in a location, at an event, or in a circumstance where the university exercises substantial control over both the Respondent and the context in which the conduct occurs. However, the university will address conduct contributing to a Hostile Environment even if the underlying conduct itself occurred outside the University’s Programs or Activities, including if it occurred outside the United States, and including conduct occurring online via computer and internet networks or on digital platforms, including social media sites). University Programs or Activities also includes the conduct within the university’s disciplinary authority at the university’s international locations, such as Carnegie Mellon University Qatar and Carnegie Mellon University Africa.

¹A Complaint may also be brought by a parent, guardian, or other authorized legal representative with the legal right to act on behalf of a Complainant, where applicable.