Definitions

The following definitions are sourced from the Interim CSU Policy Prohibiting Discrimination, Harassment, Sexual Misconduct, Sexual Exploitation, Dating Violence, Domestic Violence, Stalking, and Retaliation (Nondiscrimination Policy).

CSU Nondiscrimination Policy prohibits Discrimination, Harassment, Sexual Misconduct, Sexual Exploitation, Dating Violence, Domestic Violence, Stalking, and Retaliation as described below. Capitalized terms used in the policy are described in Article V. C. The definitions of Prohibited Conduct below should be used for alleged misconduct that occurs on or after August 1, 2024. The definitions that should be used for alleged misconduct that occurred prior to August 1, 2024, are those in the policy in place at the time of the alleged misconduct.

Discrimination

Discrimination is conduct that causes harm to a Complainant based on their actual or perceived Protected Status within the CSU’s educational programs, activities, or employment which results in the denial or limitation of services, benefits, or opportunities provided by the CSU. Under this Nondiscrimination Policy, the definition of Discrimination includes:

1. Different Treatment Discrimination: Different Treatment Discrimination occurs when the Complainant is: 1) treated less favorably; 2) than other similarly situated individuals under similar circumstances; 3) because of the Complainant’s actual or perceived Protected Status; and 4) not for a legitimate, nondiscriminatory reason. Insignificant or trivial actions or conduct not reasonably likely to do more than anger or upset a Complainant do not constitute “Different Treatment Discrimination.”
  - Under this Nondiscrimination Policy, discrimination in employment includes any adverse employment action or conduct that is reasonably likely to impair the Employee's job performance or prospects for advancement or promotion.
  - An allegation that an Employee is receiving unequal pay because of their Protected Status (for example, under the California Equal Pay Act) constitutes a Discrimination Complaint under this Nondiscrimination Policy.

Harassment

Harassment means unwelcome verbal, nonverbal or physical conduct engaged in because of an individual Complainant's Protected Status. Harassment includes, but is not limited to, verbal harassment (e.g., epithets, derogatory comments, or slurs), physical harassment (e.g., assault, impeding or blocking movement, or any physical interference with normal work or movement), and visual forms of harassment (e.g., derogatory posters, cartoons, drawings, symbols, or gestures.). Single, isolated incidents will typically be insufficient to rise to the level of Harassment.

Harassment may occur when:

1. Submitting to, or rejecting, verbal, nonverbal, or physical conduct is explicitly or implicitly a basis for:

1. 1. Any decision affecting a term or condition of the Complainant's employment; or
  2. Any decision affecting a Complainant's academic status or progress, or access to benefits and services, honors, programs, or activities available at or through the University.

b. The conduct is sufficiently severe or pervasive so that its effect, whether intended or not, could be considered by a reasonable person under similar circumstances and with similar identities, and is in fact considered by the Complainant, as creating an intimidating, hostile, or offensive work or educational environment that denies or substantially limits an individual's ability to participate in or benefit from employment and/or educational, services, activities, or other privileges provided by the CSU.

Whether a hostile environment has been created is a fact-specific inquiry that includes consideration of the following:

1. 1. The frequency, nature, and duration of the conduct;
  2. Whether the conduct was physically threatening;
  3. Whether the conduct arose in the context of other discriminatory conduct or other misconduct;
  4. The degree to which the conduct affected the Complainant’s ability to access the CSU’s educational programs, activities or employment;
  5. The Parties’ ages, roles within the CSU’s educational programs or activities, previous interactions, and other factors about each Party that may be relevant to evaluating the effects of the conduct; and
  6. Other Harassment in the CSU’s educational programs, activities, or employment.

Sexual Misconduct

Sexual Misconduct means engaging in any sexual activity without first obtaining Affirmative Consent to the specific activity, whether or not the conduct violates any civil or criminal law. All sexual activity between members of the CSU community must be based on Affirmative Consent.

Sexual Misconduct includes, but is not limited to, the following conduct:
1. an attempt, coupled with the ability, to commit a violent injury on the person of another because of that person's Gender or Sex,
2. the intentional touching of another person's private body parts without Affirmative Consent,
3. intentionally causing a person to touch the private body parts of another without Affirmative Consent,
4. using a person's own private body part to intentionally touch another person's body without Affirmative Consent,
5. any unwelcome physical sexual acts, such as unwelcome sexual touching,
6. using physical force, violence, threat, or intimidation to engage in sexual activity,
7. ignoring the objections of the other person to engage in sexual activity,
8. causing the other person's incapacitation through the use of drugs or alcohol to engage in sexual activity,
9. taking advantage of the other person's incapacitation to engage in sexual activity
  - Private body part means the sexual organ, anus, groin, buttocks, or breasts of any person.
  - Sexual activity between a Minor and a person who is at least 18 and two years older than the Minor always constitutes Sexual Misconduct, even if there is Affirmative Consent to all sexual activity. The existence of Affirmative Consent and/or the type of sexual activity may be relevant to the determination of an appropriate Disciplinary Sanction.
  - Persons of all Genders, Gender Identities, Gender Expressions, and Sexual Orientations can be victims of these forms of Sexual Misconduct. Sexual Misconduct can be committed by an individual known to the victim including a person the Complainant may have just met, i.e., at a party, introduced through a friend, or on a social networking website.
  - California law requires the CSU to describe how it will respond to instances of stranger and non-stranger Sexual Assault. The CSU applies the same policies and sanctions for both stranger and non-stranger Sexual Assault. For the purposes of this Policy, a non-stranger is someone known to the Complainant, whether through a casual meeting or through a longstanding relationship, including a dating or domestic relationship. A stranger is someone unknown to the Complainant at the time of the Sexual Assault.
Sexual activity includes, but is not limited to:
1. kissing,
2. touching private body parts
3. fondling,
4. intercourse,
5. penetration, no matter how slight, of the vagina or anus with any part or object,
6. oral copulation of a sex organ by another person.

Affirmative Consent

Affirmative Consent means an agreement to engage in sexual activity that is informed, affirmative, conscious, voluntary, and mutual. Affirmative Consent must be given freely and without coercion, force, threats, intimidation, or by taking advantage of another person’s incapacitation. It is the responsibility of each person involved in the sexual activity to ensure Affirmative Consent has been obtained from the other participant(s) prior to engaging in the sexual activity.

1. Affirmative consent is given by clear words or actions. Affirmative consent includes knowledge and agreement to engage in the specific sexual activity.
2. Affirmative Consent must be ongoing throughout a sexual activity and can be withdrawn or revoked at any time, including after sexual activity begins. Once consent is withdrawn or revoked and clearly communicated, the sexual activity must stop immediately.
3. Consent to one form of sexual activity or one sexual act does not constitute consent to other forms of sexual activity. Consent given to sexual activity on one occasion does not constitute consent on another occasion.
4. Affirmative Consent cannot be inferred from an existing or previous dating, social, or sexual relationship between the Parties.
5. Silence does not mean there is Affirmative Consent.
6. Lack of protest or resistance does not mean there is Affirmative Consent.
7. A request for someone to use a condom or birth control does not, in and of itself, mean there is Affirmative Consent.
8. Affirmative Consent cannot be given by a person who is incapacitated. A person is unable to consent when asleep, unconscious, or incapacitated due to the influence of drugs, alcohol, or medication.

Incapacitation

Incapacitation: A person is incapacitated if they lack the physical and/or mental ability to make informed, rational decisions about whether or not to engage in sexual activity. A person with a medical or mental disability may also lack the capacity to give consent. Incapacitation exists when a person could not understand the fact, nature, or extent of the sexual activity.

1. It shall not be a valid excuse that a person affirmatively consented to the sexual activity if the Respondent knew or reasonably should have known that the person was unable to consent to the sexual activity under any of the following circumstances:
  - The person was asleep or unconscious;
  - The person was incapacitated due to the influence of drugs, alcohol, or medication, so that the person could not understand the fact, nature, or extent of the sexual activity; or
  - The person was unable to communicate due to a physical or mental condition.
2. It shall not be a valid excuse that the Respondent believed that the person consented to the sexual activity under either of the following circumstances:
  - The Respondent's belief in Affirmative Consent arose from the intoxication or recklessness of the Respondent;
  - The Respondent did not take reasonable steps, in the circumstances known to the Respondent at the time, to ascertain whether the person affirmatively consented.
3. Whether an intoxicated person (as a result of using alcohol, drugs, or medication) is incapacitated will require an individualized determination about the extent to which the alcohol or other drugs impact the person's decision-making ability, awareness of consequences, and ability to make informed judgments. The level of intoxication may change over a period of time based on a variety of individual factors, including the amount of substance consumed, speed of intake, body mass, height, weight, tolerance, food consumption, drinking patterns, and metabolism. A person's own intoxication or incapacitation from drugs or alcohol does not diminish that person's responsibility to obtain Affirmative Consent before engaging in sexual activity.
4. Incapacitation due to alcohol, drugs or medication is a state of intoxication that is so severe that it interferes with a person’s capacity to make informed and knowing decisions. A person who is incapacitated may not be able to understand where they are, whom they are with, how they got there, or what is happening. Signs that a person may be incapacitated due to the influence of drugs, alcohol, or medication include, but are not limited to, the following:
  - slurred speech or difficulty communicating clearly;
  - clumsiness or lack of physical coordination (e.g., difficulty standing or walking without assistance);
  - impaired motor skills (e.g., eating, drinking, texting);
  - disorientation regarding time and place;
  - difficulty concentrating;
  - vomiting;
  - combativeness or emotional volatility; or
  - sleeping, unconsciousness, or going in and out of consciousness.
5. Incapacitation may also include memory impairment or an inability to recall entire or partial events (sometimes referred to as “black-out” or “brown-out”). A person may experience this symptom while appearing to be functioning “normally,” including communicating through actions or words that can reasonably and objectively be interpreted as communicating consent to engage in sexual activity. Total or partial loss of memory, alone, may not be sufficient, without additional evidence, to prove that an individual was incapacitated under this Policy. Whether sexual activity under these circumstances constitutes Prohibited Conduct depends on the presence or absence of the outwardly observable factors indicating that an individual is incapacitated, as described above.
6. In evaluating Affirmative Consent in cases involving incapacitation, the CSU considers the totality of available information in determining whether a Respondent knew or reasonably should have known that the Complainant was incapacitated.

Sexual Harassment

Sexual Harassment means unwelcome verbal, nonverbal or physical conduct of a sexual nature that includes, but is not limited to, sexual advances, requests for sexual favors, offering employment benefits or giving preferential treatment in exchange for sexual favors, or any other conduct of a sexual nature. There are two kinds of Sexual Harassment:

1. Quid pro quo: Quid pro quo is Latin for “this for that” and occurs when an Employee, agent, or other person in a position of power conditions an employment or educational benefit or service on submission to sexual advances or other conduct based on sex. Quid pro quo harassment exists when submitting to, or rejecting, the verbal, nonverbal or physical conduct is explicitly or implicitly a basis for:
  1. Any decision affecting a term or condition of the Complainant's employment; or
  2. Any decision affecting a Complainant's academic status or progress, or access to benefits and services, honors, programs, or activities available at or through the University.
    OR
2. Hostile environment harassment is unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and so severe, persistent, or pervasive that it limits or denies the Complainant’s ability to participate in or benefit from the CSU’s educational programs, activities, or employment. Hostile environment harassment must either:
  1. Create an intimidating, hostile or offensive work environment; or
  2. Limit a Student’s ability to participate in or benefit from the services, activities, or opportunities offered by the University. Whether a hostile environment has been created is a fact-specific inquiry that includes consideration of the following:
    - The frequency, nature, and duration of the conduct;
    - Whether the conduct was physically threatening;
    - Whether the conduct arose in the context of other discriminatory conduct or other misconduct;
    - The degree to which the conduct affected the Complainant’s ability to access the CSU’s educational programs, activities or employment;
    - The Parties’ ages, roles within the CSU’s educational programs or activities, previous interactions, and other factors about each Party that may be relevant to evaluating the effects of the conduct; and
    - Other Sexual Harassment in the CSU’s educational programs, activities, or employment. Sexual Harassment could include being forced to engage in unwanted sexual contact as a condition of membership in a student organization or in exchange for a raise or promotion; being subjected to video exploitation or a campaign of sexually explicit content; or frequently being exposed to unwanted images of a sexual nature in a work environment, or in a classroom where the images are unrelated to the coursework. Claiming that the conduct was not motivated by sexual desire is not a defense to a Complaint of Sexual Harassment.

Sexual Exploitation

Sexual Exploitation means a person taking sexual advantage of another person for the benefit of anyone other than that person without that person's consent, including, but not limited to, any of the following acts:

1. The prostituting of another person.
2. The trafficking of another person, defined as the inducement of a person to perform a commercial sex act, or labor of services, through force, fraud, or coercion.
3. The recording of images, including video or photograph, or audio of another person's sexual activity or intimate parts, without that person's consent.
4. The distribution of images, including video or photographs, or audio of another person's sexual activity or private body parts, if the individual distributing the images or audio knows or should have known that the person depicted in the images or audio did not consent to the disclosure. This includes distribution of digitally altered or artificial-intelligence-generated images, video, and audio.
5. The viewing of another person's sexual activity or private body parts, in a place where that other person would have a reasonable expectation of privacy, without that person's consent, for the purpose of arousing or gratifying sexual desire.

Dating Violence and Domestic Violence

Dating Violence means Physical Violence or threat of Physical Violence committed by a person:

1. who is or has been in a social relationship of a romantic or intimate nature with the Complainant; and
2. where the existence of such a relationship shall be determined based on a consideration of the following factors:
  1. The length of the relationship.
  2. The type of relationship.
  3. The frequency of interaction between the individuals involved in the relationship.

Domestic Violence means Physical Violence or threat of Physical Violence 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, 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. Domestic violence also includes acts against a Minor or adult victim who is protected from those acts under the family or domestic laws of the state.

Stalking

Stalking means engaging in a Course of Conduct directed at a specific person that would cause a reasonable person to fear for the safety of self or others' safety or to suffer Substantial Emotional Distress. For purposes of this definition

1. Course of Conduct means two or more acts, including but not limited to, acts in which one party directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about the other party, or interferes with the other party'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.

Prohibited Consensual Relationships

Prohibited Consensual Relationships include consensual sexual or romantic relationships between an Employee and any Student or Employee over whom they exercise direct or otherwise significant academic, administrative, supervisory, evaluative, counseling, or extracurricular authority.

1. A consensual relationship means a sexual or romantic relationship between two individuals who voluntarily enter into such a relationship.
2. While sexual and/or romantic relationships between members of the University community may begin as consensual, they may evolve into situations that lead to Discrimination, Harassment, Retaliation, Sexual Misconduct, Sexual Exploitation, Dating Violence, Domestic Violence, or Stalking subject to this Nondiscrimination Policy.
3. It is a violation of this Nondiscrimination Policy for an Employee to enter into a Prohibited Consensual Relationship.
4. Examples of Prohibited Consensual Relationships include, but are not limited to, a supervisor and an employee in their chain of command; a faculty member and a student enrolled in their class; a counselor and a student they are advising; a resident advisor and a student in their building; a club advisor and club member.

Retaliation

Retaliation is intimidation, coercion, or discrimination against any individual for the purpose of interfering with their exercise of any rights under this Nondiscrimination Policy by:

1. Reporting or filing a Complaint;
2. Participating or refusing to participate in any manner in any Policy-related investigation or proceeding, including a hearing;
3. Opposing conduct which was reasonably and in good faith believed to be in violation of this Nondiscrimination Policy;
4. Assisting or participating in an investigation or proceeding under this Nondiscrimination Policy, regardless of whether the Complaint was substantiated; or
5. Assisting someone else in reporting or opposing a violation of this Nondiscrimination Policy or assisting someone else in reporting or opposing Retaliation under this Nondiscrimination Policy.
  - For purposes of this definition, Retaliation includes conduct that would discourage a reasonable person from reporting or participating in a process provided for in this Policy, including threats, intimidation, coercion, reprisals, discrimination, and adverse employment or educational actions.
  - Peer Retaliation, which is defined as Retaliation by one Student against another Student, is also prohibited.
  - Retaliation may occur even when there is not a power or authority differential between the individuals involved.
  - The exercise of rights protected under the First Amendment does not constitute Retaliation prohibited under this definition.
  - Good faith actions lawfully pursued in response to a Complaint, such as gathering evidence, providing Supportive Measures, or disciplining Students or Employees found to be in violation of this Nondiscrimination Policy, without more, are not considered Retaliation.

Title IX/Discrimination, Harassment & Retaliation