IV. WHAT IS NOT SEX HARASSMENT

The law does not prohibit all sexual behavior or relationships.

Isolated and trivial behavior. The law does not prohibit gender-based behavior that is both isolated and trivial. A sexual joke or an off-hand gender-related comment by itself will not constitute illegal conduct. The United States Supreme Court has said that the law is not intended to be a "general civility code."

Consensual conduct.

Relationships and conduct which are truly consensual do not constitute sex harassment. Consensual conduct is equally desired, mutually agreed-on, and willingly permitted by both parties. The fact that a person has "voluntarily" submitted to certain conduct; does not inform the other party that the conduct is offensive or undesirable; or, may have benefitted from it does not necessarily mean that it is consensual. If the conduct was unwanted by that person, it may constitute harassment.

Example: Often a supervisor or professor charged with harassment will argue that the relationship was consensual because the complainant participated in the conduct. ("Why did my graduate assistant go out to dinner with me, if it was an unwanted invitation?") What the supervisor or professor fails to understand is that what was in his or her head is not determinative. The complainant's perception counts. Under the law, conduct is sexual harassment if a "reasonable person" with the victim's perspective would consider it so. The potentially coercive relationship between the parties is often conclusive in deciding culpability.

Consensual relationships and University policy.

University policy does not prohibit consensual sexual relationships between faculty and students or supervisors and employees. The University recognizes that the issues relating to such a prohibition are complex, and raise concerns about an individual's rights and freedoms.

The University, however, has issued a Statement on Sexual Relationships and Professional Conduct which urges all members of the campus community to consider the ethical questions that arise as a result of such relationships. Individuals should understand that the element of unequal power inherent in such relationships casts doubt on whether they can be truly consensual. Many professional codes of conduct (for example, for physicians and psychologists) prohibit sexual relationships that occur within the context of one's profession. These types of relationships in the classroom or office raise questions of conflict of interest, and complaints of favoritism.

The University recommends that individuals in such relationships voluntarily change the professional relationship so the authority or power differential is eliminated. When such relationships come to the University's attention, it may act to remove the conflict.