Sex Discrimination - Disparate Treatment
Disparate treatment refers to actions that treat similarly situated persons differently on the basis of a prohibited classification. In the case of Title IX, the prohibited classification is sex. Disparate treatment is also referred to as "intentional," "purposeful," or "invidious" discrimination.
Sex Discrimination - Disparate Impact
Disparate impact focuses on the consequences of an apparently sex-neutral policy or practice. Under this theory of discrimination, the core inquiry focuses on the results of the action taken, rather than the underlying intent.
Sex Discrimination - Retaliation
Retaliation is an intentional adverse action taken against an individual for opposing sex discrimination.
Source: Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005). See U.S. Department of Education, Office for Civil Rights, Dear Colleague Letter (April 24, 2013)
Sexual harassment is a form of sex discrimination. Sexual harassment is unwelcome conduct of a sexual nature and can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence.
If harassing conduct is sufficiently serious (sufficiently severe or pervasive) to deny or limit a student’s ability to participate in or benefit from the school’s program based on sex then a hostile environment based on sex may exist.
Non-sexual harassment of a person because of the person’s sex and/or gender, including, but not limited to, harassment based on the person’s nonconformity with gender stereotypes.
Discrimination occurs when an individual, or group of individuals, is treated adversely because they belong to a classification of individuals that is protected from discrimination by a federal or state statute or University policy as set forth above [race, color, religion, sex, national origin, age, disability, veteran status, sexual orientation, gender identity, or genetic information]. The failure to provide reasonable accommodations required by law or University policy based on disability or religious practice may constitute discrimination.
Harassment is a specific form of discrimination. It is unwelcome behavior, based on a protected classification, that a reasonable person would perceive to be sufficiently severe or pervasive to create an intimidating, hostile, or offensive environment for academic pursuits, employment, or participation in University-sponsored activities. Additionally, sexual harassment, whether between individuals of the same or different sex, includes unwelcome conduct of a sexual nature that is made, either explicitly or implicitly, a condition of an individual’s education, employment, or participation in a University program or activity, and/or when the submission to or rejection of such conduct is a factor in decisions affecting that individual’s education, employment, or participation in University-sponsored activities. Harassing conduct may take many forms, including verbal acts and name calling, as well as nonverbal behavior, such as graphic, electronic, and written statements, or conduct that is physically offensive, harmful, or threatening.
Retaliation occurs when an adverse action is taken against an individual for engaging in protected activity. Protected activity consists of: (1) opposing conduct reasonably believed to constitute discrimination, including harassment, which violates a nondiscrimination statute or which University policy prohibits; (2) filing a complaint about such practice; or (3) testifying, assisting, or participating in any manner in an investigation or other proceeding related to a discrimination complaint. Adverse actions that are reasonably likely to deter a complaining individual or others from engaging in protected activity are prohibited.
Discrimination, harassment, and retaliation are not explicitly (separately) defined in the Student Code of Conduct, although such behavior is prohibited by the Student Code of Conduct. Descriptions of behavior are provided in section 5-308(F) Prohibited Conduct rather than definitions for discrimination, harassment, and retaliation (there are some exceptions, notably that stalking and sexual misconduct are explicitly defined in 5-308(E) ). If no explicit definition is given in the Student Code of Conduct the definition found in the Nondiscrimination and Anti-harassment Policy is used as that Policy governs expectations for Student Behavior.
Consent is defined in the Student Code of Conduct:
“Consent” in the context of sexual activity means informed and freely given words or actions that indicate a willingness to participate in mutually agreed upon sexual activity.
Consent may not be inferred from: 1) silence, passivity or lack of resistance, 2) a current or previous dating or sexual relationship, 3) acceptance or provision of gifts, meals, drinks, or other items or or 4) previous consent to sexual activity.
Consent may be withdrawn during sexual activity, consent to one form of consensual sexual activity does not imply consent to any other form of sexual activity.
Consent may not be obtained through physical force, violence, duress, intimidation, coercion, or an express or implied threat of injury.
Consent may never be given by a person who is: incapacitated (by drugs, alcohol or otherwise), unconscious, asleep, or otherwise physically or mentally unable to make informed, rational judgments. The use of alcohol or drugs does not diminish one’s responsibility to obtain consent and does not excuse conduct that violates this Student Code of Conduct.
Consent - ARS 13-1401(5)
"Without consent" includes any of the following:
The victim is coerced by the immediate use or threatened use of force against a person or property.
The victim is incapable of consent by reason of mental disorder, mental defect, drugs, alcohol, sleep or any other similar impairment of cognition and such condition is known or should have reasonably been known to the defendant. For purposes of this subdivision, "mental defect" means the victim is unable to comprehend the distinctively sexual nature of the conduct or is incapable of understanding or exercising the right to refuse to engage in the conduct with another.
The victim is intentionally deceived as to the nature of the act.
The victim is intentionally deceived to erroneously believe that the person is the victim's spouse.
Domestic violence - ARS 13-3601
"Domestic violence" means any act that is a dangerous crime against children as defined in section 13-705 or an offense prescribed in section 13-1102, 13-1103, 13-1104, 13-1105, 13-1201, 13-1202, 13-1203, 13-1204, 13-1302, 13-1303, 13-1304, 13-1406, 13-1502, 13-1503, 13-1504, 13-1602 or 13-2810, section 13-2904, subsection A, paragraph 1, 2, 3 or 6, section 13-2910, subsection A, paragraph 8 or 9, section 13-2915, subsection A, paragraph 3 or section 13-2916, 13-2921, 13-2921.01, 13-2923, 13-3019, 13-3601.02 or 13-3623, if any of the following applies:
The relationship between the victim and the defendant is one of marriage or former marriage or of persons residing or having resided in the same household.
The victim and the defendant have a child in common.
The victim or the defendant is pregnant by the other party.
The victim is related to the defendant or the defendant's spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister or by marriage as a parent-in-law, grandparent-in-law, stepparent, step-grandparent, stepchild, step-grandchild, brother-in-law or sister-in-law.
The victim is a child who resides or has resided in the same household as the defendant and is related by blood to a former spouse of the defendant or to a person who resides or who has resided in the same household as the defendant.
The relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship. The following factors may be considered in determining whether the relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship:
The type of relationship.
The length of the relationship.
The frequency of the interaction between the victim and the defendant.
If the relationship has terminated, the length of time since the termination.
Sexual assault - ARS 13-1406(A)
A person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person.
Stalking - ARS 13-2923
A person commits stalking if the person intentionally or knowingly engages in a course of conduct that is directed toward another person and if that conduct either:
Would cause a reasonable person to fear for the person's safety or the safety of that person's immediate family member and that person in fact fears for the person's safety or the safety of that person's immediate family member.
Would cause a reasonable person to fear death of that person or that person's immediate family member and that person in fact fears death of that person or that person's immediate family member.