Policy: Section VIII

VIII. Prohibited Conduct and Definitions

All members of the Bates community are entitled to an educational and employment environment free from discrimination, harassment, and bias. The sections below describe prohibited conduct; engaging in such conduct could result in disciplinary action (up to and including dismissal from the college or termination of employment) through the appropriate grievance process described in this policy.

The college recognizes that a robust learning environment often challenges community members to engage in difficult conversations. This policy is not meant to inhibit or prohibit educational content or discussions inside or outside of the classroom that include germane, but controversial or sensitive, subject matters protected by academic freedom and/or the First Amendment. [1] 

The sections below describe the specific forms of legally prohibited discrimination, harassment, and retaliation that are also prohibited under college policy. When speech or conduct is protected by academic freedom and/or the First Amendment, it will not be considered a violation of college policy, though supportive measures will be offered to those impacted.

The prohibited behaviors described below encompass actual and/or attempted offenses.

Any of the following offenses can be charged individually or combined as pattern offenses, in which case the Notice of Investigation and Allegation (NOIA) will clearly indicate that both individual incidents and a pattern of conduct are being investigated. A pattern may exist and be charged when there is a potential substantial similarity to incidents where the proof of one could make it more likely that the other(s) occurred, and vice-versa. Patterns may exist based on target selection, behavior similarity, or other factors. Pattern-based evidence can offer corroboration of an allegation, and where a pattern is found, it can be the basis to enhance sanctions, accordingly.

Violation of any other college policies may constitute discrimination or harassment when motivated by actual or perceived protected characteristic(s), and the result is a limitation or denial of employment or educational access, benefits, or opportunities.

[1] For more information on academic freedom, see Bates Faculty Handbook, Article I. Section 2.

A.           Discrimination

Discrimination is different treatment with respect to a person’s employment or participation in an education program or activity based, in whole or in part, upon the person’s actual or perceived protected characteristic. Discrimination also includes allegations of a failure to provide reasonable accommodations as required by law or policy, such as for disability, religion, or creed.

Discrimination can take two primary forms:

1. Disparate Treatment Discrimination: Any intentional differential treatment of a person or persons that is based on a person’s actual or perceived protected characteristic and that:

  • excludes a person from participation in;
  • denies the person benefits of; or
  • otherwise adversely affects a term or condition of a person’s participation in a college program or activity.

2. Disparate Impact Discrimination: Disparate impact occurs when policies or practices that appear to be neutral unintentionally result in a disproportionate impact on a protected group or person that:

  • excludes an individual from participation in;
  • denies the individual benefits of; or
  • otherwise adversely affects a term or condition of an individual’s participation in a college program or activity.

B. Harassment

a. Discriminatory Harassment

Discriminatory harassment refers to verbal, written, visual, or physical conduct based on or motivated by an individual’s actual or perceived protected characteristic or activity as described in Section III of this policy. 

Discriminatory harassment is unwelcome conduct or behavior on the basis of actual or perceived protected characteristic(s) that based on the totality of the circumstances, is subjectively and objectively offensive, and is sufficiently severe, pervasive, or persistent that it limits or denies an individual’s ability to participate in or benefit from the college’s education program or activity.

b. Sexual Harassment (Title IX)

The Department of Education’s Office for Civil Rights (OCR), the Equal Employment Opportunity Commission (EEOC), and the State of Maine regard sexual harassment, a specific form of discriminatory harassment, as an unlawful discriminatory practice.

Acts of Sexual Harassment may be committed by any person upon any other person, regardless of the sex, sexual orientation, and/or gender identity of those involved.

Bates has adopted the following definition of Sexual Harassment to address the unique needs of the academic community.  This definition uses plain language to assist individuals in understanding the definitions used in the federal Title IX regulations that all colleges must adopt.  All definitions include actual and attempted offenses.

Sexual Harassment, as an umbrella category defined by the federal Title IX regulations, includes the offenses of sexual harassment, sexual assault, domestic violence, dating violence, and stalking.    

Sexual Harassment is defined as conduct on the basis of sex or that is sexual in nature that satisfies one or more of the following:

  1. Quid Pro Quo: A Bates employee conditions the provision of aid, benefit, or service of the college on an individual’s participation in unwelcome sexual conduct;[1] 
  2. Sexual Harassment (Hostile Environment):  Unwelcome conduct of a sexual nature determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to a Bates education program or activity;
  3. Sexual Assault, defined as: Sexual acts committed without the consent of the Complainant, including instances where the complainant is incapable of giving consent because of age or because of temporary or permanent incapacity.
    • Penetrative Assault (Rape under Clery Act): This includes:
      • Vaginal or anal penetration, however slight, with a body part (e.g., penis, tongue, finger, hand) or object; or
      • Oral penetration involving mouth to genital contact.
    • Fondling (Criminal Sexual Contact under Clery Act): For the purpose of sexual gratification, sexual degradation, or sexual humiliation:
      • The intentional touching of clothed or unclothed parts of the Complainant;
      • The Respondent’s private body parts touching the Complainant; or
      • The Respondent causing the Complainant to touch the Respondent’s or their own private body parts.
    • Incest:  Non-forcible sexual intercourse between people who are related to each other within the degrees wherein marriage is prohibited.  In the State of Maine, a person may not marry that person’s parent, grandparent, child, grandchild, sibling, nephew, niece, aunt, or uncle; and
    • Statutory Rape:  Non-forcible sexual intercourse with a person who is under the statutory age of consent.  In the State of Maine, consent cannot be given by minors who are 14 or 15, if the actor is at least 5 years older than the minor.  Consent cannot be given by minors under 14 years of age, regardless of the age of the Respondent.  For this reason, any sexual act with an individual under 14 years of age is considered a felony.

4. Dating Violence:  Violence, on the basis of sex, committed by a Respondent, who is in or has been in a social relationship of a romantic or intimate nature with the Complainant.  The existence of such a relationship shall be determined based on the Complainant’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. 

For the purposes of this definition, dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. Dating violence does not include acts covered under the definition of domestic violence.

5. Domestic Violence:  Violence, committed by Respondent who is any of the following:

  • a current or former spouse or intimate partner of the Complainant;
  • a person with whom the Complainant shares a child in common;
  • a person who is cohabitating with, or has cohabitated with the Complainant as a spouse or intimate partner;
  • a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of the State of Maine; or
  • any other person considered a household member under the domestic or family violence laws of the State of Maine.

To categorize an incident as Domestic Violence, the relationship between the Complainant and the Respondent must be more than just two people living together as roommates.  The people cohabitating must be current or former spouses or have an intimate relationship.

6. Stalking:  A course of conduct by a Respondent, on the basis of sex, directed at a Complainant that would cause a reasonable person to fear for their safety or the safety of others, or suffer substantial emotional distress. 

For the purposes of this definition, “course of conduct” means two or more acts, including, but not limited to, acts in which the Respondent 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. 

“Substantial emotional distress” means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.

For all sexual harassment definitions, “reasonable person” means a reasonable person under similar circumstances and with similar identities to the Complainant.

c.         Sexual Harassment (Title VII and Fair Housing Act)

This definition applies to situations where an employee is subjected to workplace Sexual Harassment or where a situation involves a Complainant residing in college-owed or provided housing.

Unwelcome verbal, written, graphic, and /or physical conduct on the basis of sex that is severe or pervasive and objectively offensive that it unreasonably interferes with, limits, or effectively denies an individual’s educational or employment access, benefits, or opportunities.

B.        Other Prohibited Conduct

Bates also prohibits the following behavior as forms of discrimination.  In addition to the forms of sexual harassment described above, which are covered by Title IX of the Education Amendments of 1972, these behaviors may or may not fall within the scope of Title IX.

  1.       Sexual Exploitation

Sexual Exploitation occurs when an individual takes non-consensual or abusive sexual advantage of another for one’s own advantage or benefit, or to benefit or advantage anyone other than the person being exploited and that does not otherwise constitute Sexual Harassment under this policy.

Examples of sexual exploitation include, but are not limited to:

  • surreptitiously observing another individual’s nudity or sexual activity or allowing another individual or group to observe consensual sexual activity without the knowledge and consent of all parties involved;
  • invasion of sexual privacy (e.g. doxxing);
  • non-consensual taking or streaming of authentic or synthetic images, photography, video, or audio recording of sexual activity or nudity, or distribution of such without the knowledge and consent of all parties involved;
  • distributing sexually intimate or sexual information about another person;
  • knowingly making an unwelcome disclosure of (or threatening to disclose) a person’s sexual orientation, gender identity, or gender expression
  • prostituting another person or engaging in sex trafficking;
  • inducing another to expose their own genitals in non-consensual circumstances;
  • knowingly exposing another individual to a sexually transmitted infection (STI) or virus without their knowledge;
  • misappropriating another person’s identity on apps, websites, or other venues designed for dating or sexual connections;
  • causinging or attempting to cause the incapacitation of another person for the purpose of making another person vulnerable to non-consensual sexual activity;
  • forcing a person to take an action against that person’s will by threatening to show, post, or share information, video, audio, or images that depicts a person’s nudity or sexual activity;
  • knowingly soliciting a minor for sexual activity;
  • creating, possessing, or disseminating child pornography or images or recordings of child sexual abuse;
  • creating or disseminating synthetic media, including images, videos, or audio representations of individuals doing or saying sexually-related things that never happened, or placing identifiable real people in fictitious pornographic or nude situations without their consent (i.e., Deepfakes); and
  • knowingly assisting another person with committing an act of sexual misconduct.

b.         Interpersonal Violence (under State of Maine Law)

Interpersonal Violence is any conduct defined as Interpersonal Violence under Maine State law that is does not other-wise constitutes sex-based harassment or sexual exploitation.

This includes:

1. Any crime under Title 17-A, chapter 11 (Sexual Assaults);

2. Unauthorized dissemination of certain private images pursuant to Title 17-A, section 511-A;

3. Aggravated sex trafficking or sex trafficking pursuant to Title 17-A, section 852 or 853 respectively; or

4. Sexual Harassment as defined in Title 14, section 6000, subsection 2-A.77

c.         Physical Assault or Threats of Violence

Physical Assault is a purposeful action meant to threaten or endanger the health or safety of any person. Examples include, but are not limited to, fighting, pushing, kicking, punching, hitting with or throwing an object at, or biting. Threats of violence may include extreme verbal, emotional, or psychological abuse, or other conduct which threatens or endangers the health or safety of another person. This behavior is typically treated as a violation of the Bates Code of Student Conduct and/or the Employee Handbook. When these acts are perpetrated on the basis of actual or perceived membership in a protected class, the report will be resolved using the procedures outlined in this policy.

d.         Hazing

Hazing is any act or action which does or is likely to endanger the mental or physical health or safety of any person as it relates to a person’s initiation, admission into, or affiliation with any Bates-recognized group or organization.

For the purposes of this definition:

  • It is not necessary that a person’s initiation or continued membership is contingent upon participation in the activity, or that the activity was sanctioned or approved by the student group or student organization, for an allegation of hazing to be upheld.
  • It shall not constitute an excuse or defense to a hazing allegation that the participants took part voluntarily, gave consent to the conduct, voluntarily assumed the risks or hardship of the activity, or that no injury was suffered or sustained.
  • The actions of alumni, active, new, and/or prospective members of a student group or student organization may be considered hazing.

e.         Bullying

Bullying is repeated and/or severe aggressive behavior likely to intimidate or intentionally hurt, control, or diminish another person, physically and/or mentally that is not speech or conduct that is otherwise protected by the First Amendment.  It can be written or oral expression, physical acts or gestures, or a combination of the two.  It includes, but is not limited to, conduct that:

  • physically harms another person;
  • damages another person’s property;
  • creates an intimidating educational or work environment; or
  • interferes with the individual’s academic or work performance or ability to participate in or benefit from the services, activities, or privileges provided by the college.   

Bullying includes cyberbullying — bullying that occurs through the use of technology or any electronic communication.

f. Indecent Exposure

A person commits Indecent Exposure if that person intentionally shows their genitals in a public place or in another place where there are other persons present under circumstances in which one knows or should know that this conduct is likely to affront or alarm.

g.         Retaliation

Retaliation is any material adverse action taken by the college or a member of the Bates community against any individual because the individual:

  • made a report or complaint;
  • participated in an investigation or hearing;
  • assisted in the gathering of evidence; or
  • refused to participate in a resolution process under this policy.

Forms of retaliation include intimidation, threats, coercion or discrimination. Retaliation can be committed by the college, a student, employee, or a person authorized by the college to provide aid, benefit, or service under the college’s education program or activity, not just a Respondent. Retaliatory conduct interferes with the rights or privileges secured by law or policy.

An individual reporting harassment or discrimination is entitled to protection from any form of retaliation following a report that is made in good faith, even if the underlying allegations are later not proven to be a violation of this policy.  Individuals acting in good faith to oppose or disrupt conduct that constitutes a violation of this policy are likewise protected from retaliation.

Any attempt to interfere with or circumvent any right or privilege afforded by this policy may be considered retaliatory.  Therefore, as directed by the federal regulations, the Title IX Coordinator vets all complaints carefully to ensure that complaints are routed to the appropriate grievance process and that all appropriate rights and privileges are maintained.

The exercise of rights protected under the First Amendment or free expression does not constitute retaliation.

Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a resolution proceeding under this policy and procedures does not constitute retaliation, provided that the determination of responsibility, by itself, is not sufficient to conclude that any party has made a materially false statement in bad faith.

h. Failure to Comply/Process Interference

While parties have the right to choose whether they wish to participate in the resolution process, actions that interfere with the process or do not comply with reasonable directives are subject to discipline.  These acts include:

  • intentional failure to comply with the reasonable directives of the Title IX Coordinator or other college amdministrator in the performance of their official duties, including with the terms of a no contact order;
  • intentional failure to comply with emergency removal or interim suspension terms;
  • intentional failure to comply with sanctions;
  • intentional failure to adhere to the terms of an Informal Resolution agreement;
  • intentional failure to comply with required reporting duties as defined in this policy;
  • intentional interference with the resolution process, including but not limited to:
    • destruction of or concealing of evidence;
    • actual or attempted solicitation of knowingly false testimony or providing false testimony or evidence; and
    • intimidating or bribing a witness or party.

[1] This definition is understood to encompass the quid pro quo sexual harassment definition included in the Maine Human Rights Comission employment regulations.  Under these regulations, Quid Pro Quo is defined as having occured when a) submission to unwelcome sexual conduct is made either explicitly or implicity a term or condition of an individual’s employment; or b) submission to or rejection of unwelcome sexual conduct is used as the basis for employment decisions affecting the individual. Employment Regulations of the Maine Human Rights Commission, Sections 10(1)A and 10(1)B.

D. Prohibited Relationships by Persons in Authority

Sexual, romantic, or other intimate relationships in which one party maintains a direct supervisory or evaluative role over the other party are prohibited. In general, this includes all sexual or other intimate relationships between students and their professors, coaches, advisors, employers, supervisors, or other college employees. Similarly, college employees (faculty and staff) who supervise or otherwise hold positions of authority over others are prohibited from having a sexual or other intimate relationship with an individual under their direct supervision.

The college does not wish to interfere with private choices regarding personal relationships when these relationships do not interfere with the goals and policies of the college. However, faculty, administrators, and others who educate, supervise, evaluate, employ, counsel, coach, or otherwise guide students or other employees should understand the fundamentally asymmetrical nature of the relationship they have with students or subordinates. Intimate or sexual relationships where there is a differential in power or authority produce risks for every member of our community and undermine the professionalism of employees and supervisors. In either context, the unequal position of the parties presents an inherent element of risk and may raise sexual harassment concerns if one person in the relationship has the actual or apparent authority to supervise, evaluate, counsel, coach or otherwise make decisions or recommendations as to the other person in connection with their employment or education at the college.

Sexual relations between persons occupying asymmetrical positions of power, even when both consent, raise suspicions that the person in authority has violated standards of professional conduct and potentially subject the person in authority to charges of sexual harassment based on changes in the perspective of the individuals as to the consensual nature of the relationship. Similarly, these relationships may impact third parties based on perceived or actual favoritism or special treatment based on the relationship.

Therefore, persons with direct supervisory or evaluative responsibilities who contemplate beginning or are involved in such relationships are required to promptly: 1) discontinue any supervising role or relationship over the other person; and 2) report the circumstances to their own supervisor. Examples of evaluative responsibilities include, but are not limited to: grading, performance evaluations, salary decisions, decisions regarding promotion and tenure, or decisions on continuation of employment for a person with whom they have a consensual relationship. Failure to fully or timely comply with these requirements is a violation of this policy, and the person in authority could be subject to disciplinary action, up to and including dismissal from employment by the college.

All violations, complaints, or concerns regarding this policy should be reported to the Title IX Coordinator.

E. Other Campus Code Violations

When other potential violations of the Bates Code of Student Conduct or the Employee Conduct Policy occur in conjunction with incidents of harassment or discrimination or when the behavior is perpetrated on the basis of bias against a protected class, the college has the discretion to resolve those violations under this policy.

F.         Hate Crime and Bias Incidents

The terms Hate Crime and Bias Incident refer to a range of behaviors that are rooted in intolerance or prejudice based on protected identity characteristics.  Since these terms are  umbrella terms, incidents will be resolved based upon the actual category of prohibited behavior either listed above (harassment, bullying, etc.) or as defined by the Code of Student or Employee Handbook. 

a. Hate Crime

Hate Crime refers to the violence of intolerance and prejudice, intended to hurt and intimidate, committed against a person, property, or society that is motivated by an offender’s bias against a specific characteristic of an individual or group because of their race, ethnicity, national original, religion, sex, sexual orientation, gender identity, gender expression, age, physical or mental disability. Hate crimes are criminal offenses that include acts such as physical assault, stalking, cyberstalking, criminal threatening, intimidation, terrorizing, criminal use of explosives, arson, vandalism or other damage to property, reckless conduct, harassment, verbal abuse or insults, or hate mail.  Several Maine statutes provide civil and/or criminal remedies for hate crimes.  All suspected hate crimes will be referred to the State of Maine Office of the Attorney General for their evaluation, investigation, and/or prosecution. 

b. Bias Incident

Bias Incident refers to any event of intolerance or prejudice, not involving violence or other criminal conduct intended to hurt and intimidate, committed against a person, property, or society that is motivated by an offender’s bias against a specific characteristic of an individual or group because of their race, ethnicity, national original, religion, sex, sexual orientation, gender identity, gender expression, age, physical or mental disability. Examples of bias incidents include hate speech, gay bashing, racist epithets, religious slurs, sexist jokes or cartoons, hate mail, offensive graffiti, or disparaging remarks on social media sites.  Such incidents create a socially divisive atmosphere for members of the Bates community targeted and negatively affect the campus climate.