Policy Against Discrimination and Harassment

Any individual who experiences or observes discrimination or harassment is encouraged to report such information. Jurisdiction for adjudicating matters involving a member of the College community include where the conduct: occurs on campus or in a College-sponsored program, affects a College program or activity, or is carried out by a member of the College community. Reports should be made as soon as possible to one of the College staff persons identified below. In certain instances, the College may investigate allegations of discrimination or harassment based on information received from other sources, such as newspaper accounts, anonymous letters or phone calls.

Because reporting carries no obligation to initiate a formal response, and as the College respects Complainant requests to dismiss complaints unless there is a compelling threat to health and/or safety, the Complainant is largely in control and should not fear a loss of privacy by making a report that allows the College to discuss and/or provide supportive measures. Further information about rights and responsibilities of the parties can be found in the Formal Title IX Grievance Process for allegations of sexual harassment meeting regulatory requirement and in the Discrimination and Harassment Procedures for allegations of discrimination or harassment not covered under the Formal Process.

A report can be made online.

Individuals who may have experienced or observed discrimination or harassment may consult with the Director of Nondiscrimination and Title IX to discuss their concern or initiate a report.

Harassment based on any protected category is prohibited under federal law, New York State law, and New York City law, as well as this policy.  You can report discrimination and harassment under federal laws by contacting the Equal Employment Opportunity Commission (EEOC).

In New York State, you can report discrimination and harassment under the New York State Human Rights Law by contacting the Division on Human Rights, in person at a Division office, by telephone or by mail.  The Division has offices across the State of New York and can be contacted. Such claims may also be brought in state court.

In New York City, you can contact the New York City Commission on Human Rights (NYCCHR) or by calling 311 or (718) 722-3131 or in person at their locations.

Online Harassment and Misconduct

The policies of Barnard College are written and interpreted broadly to include online manifestations of any of the behaviors prohibited below, when those behaviors occur in or have an effect on the College’s education program and activities or use College networks, technology, or equipment. Although Barnard may not control websites, social media, and other venues in which harassing communications are made, when such communications are reported to the College, it will engage in a variety of means to address and mitigate the effects.

Members of the community are encouraged to be good digital citizens and to refrain from online misconduct to harm another member of the College community.

Prohibited Conduct Defined

Students, staff, administrators, and faculty are entitled to an employment and educational environment that is free of discriminatory harassment. Barnard’s harassment 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.

The sections below describe the specific forms of legally prohibited harassment 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 Barnard’s policy, though supportive measures will be offered to those impacted. All policies encompass actual and/or attempted offenses.

a. Discriminatory Harassment

Discriminatory harassment constitutes a form of discrimination that is prohibited by Barnard policy. Discriminatory harassment is defined as harassment by any member or group of the community on the basis of actual or perceived membership in a class protected by policy or law. 

A hostile environment is one that unreasonably interferes with, limits, or effectively denies an individual’s educational or employment access, benefits, or opportunities.[1] This discriminatory effect results from harassing verbal, written, graphic, or physical conduct that is severe or pervasive and objectively offensive.

Please consult with the Director of Nondiscrimination and Title IX to determine appropriate referral(s) to partner offices or other available resources for conduct and concerns falling outside of this policy.

b. Sexual Harassment

The Department of Education’s Office for Civil Rights (OCR), the Equal Employment Opportunity Commission (EEOC), and the State of New York regard Sexual Harassment, a specific form of discriminatory harassment, as an unlawful discriminatory practice. Barnard has adopted the following definition of Sexual Harassment in order to address the unique environment of an academic community.

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. Sexual Harassment, as an umbrella category, includes the offenses of sexual harassment, sexual assault, domestic violence, dating violence, and stalking, and is defined as:

Conduct on the basis of sex[2] or that is sexual that satisfies one or more of the following:

1. Quid Pro Quo: an employee of the College conditions[3] the provision of an aid, benefit, or service of the College on an individual’s participation in unwelcome sexual conduct.
2. Sexual Harassment: unwelcome conduct, determined by a reasonable person, to be so severe, and pervasive, and, objectively offensive that it effectively denies a person equal access to the College’s education program or activity.
3. Sexual assault, defined as:
   • Any sexual act (See Appendix C for sexual act(s), defined) directed against another person without the consent of the Complainant, including instances in which the Complainant is incapable of giving consent.
   • Incest: Non-forcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by New York state law.
   • Statutory Rape: Non-forcible sexual intercourse with a person who is under the statutory age of consent of 17 years old.
4. Dating Violence, defined as: violence on the basis of sex committed by a person 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*, defined as: violence on the basis of sex 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, or 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 under the domestic or family violence laws of New York, or by any other person against an adult or youth Complainant who is protected from that person’s acts under the domestic or family violence laws of New York.

*To categorize an incident as Domestic Violence, the relationship between the Respondent and the Complainant 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, defined as: engaging in a course of conduct directed at a specific person, that
   1. would cause a reasonable person to fear for the person’s safety, or
   2. the safety of others; or
   3. 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
• Reasonable person means a reasonable person under similar circumstances and with similar identities to the Complainant.
• Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.

Consensual Relationships and Sexual Harassment
Actual or apparent authority that employees may have over a student is a strong factor in finding that certain types of conduct constitute sexual harassment. This can be so even if a student has not complained about the conduct, does not show signs of being harassed, or fails to file a complaint of harassment. Complaints of sexual harassment of students, including alleged consensual relationships, will be carefully evaluated in the context of the unique relationship and responsibility that faculty, administrators, and other College employees have to students or other employees

c. Force, Coercion, Consent, and Incapacitation

As used in the offenses above, the following definitions and understandings apply:

Force: Force is the use of physical violence and/or physical imposition to gain sexual access. Force also includes threats, intimidation (implied threats), and coercion that is intended to overcome resistance or produce consent.

Sexual activity that is forced is, by definition, non-consensual, but non-consensual sexual activity is not necessarily forced. Silence or the absence of resistance alone is not consent. Consent is not demonstrated by the absence of resistance. While resistance is not required or necessary, it is a clear demonstration of non-consent.

Coercion: Coercion is unreasonable pressure for sexual activity. Coercive conduct differs from seductive conduct based on factors such as the type and/or extent of the pressure used to obtain consent. When someone makes clear that they do not want to engage in certain sexual activity, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.

Affirmative consent: is a knowing, voluntary and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent.

Individuals may experience the same interaction in different ways. Therefore, it is the responsibility of each party to determine that the other has consented before engaging in the activity. If consent is not clearly provided prior to engaging in the activity, consent may be ratified by word or action at some point during the interaction or thereafter, but clear communication from the outset is strongly encouraged. For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct. Reasonable reciprocation can be implied. Consent can also be withdrawn once given, as long as the withdrawal is reasonably and clearly communicated. If consent is withdrawn, that sexual activity should cease within a reasonable time.

Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse). A current or previous intimate relationship is not sufficient to constitute consent. Proof of consent or non-consent is not a burden placed on either party involved in an incident. Instead, the burden remains on the College to determine whether its policy has been violated. The existence of consent is based on the totality of the circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances, including the context in which the alleged incident occurred.

Incapacitation: A person cannot consent if they are unable to understand what is happening or are disoriented, helpless, asleep, or unconscious, for any reason, including by alcohol or other drugs. As stated above, a Respondent violates this policy if they engage in sexual activity with someone who is incapable of giving consent.

It is a defense to a sexual assault policy violation that the Respondent neither knew nor should have known the Complainant to be physically or mentally incapacitated. “Should have known” is an objective, reasonable person standard that assumes that a reasonable person is both sober and exercising sound judgment.

Incapacitation occurs when someone cannot make rational, reasonable decisions because they lack the capacity to give knowing/informed consent (e.g., to understand the “who, what, when, where, why, and how” of their sexual interaction). Incapacitation is determined through consideration of all relevant indicators of an individual’s state and is not synonymous with intoxication, impairment, blackout, and/or being drunk. This policy also covers a person whose incapacity results from a temporary or permanent physical or mental health condition, involuntary physical restraint, and/or the consumption of incapacitating drugs.

d. Other Civil Rights Offenses

In addition to the forms of specific sexual harassment described above, which are covered by Title IX, The College additionally prohibits the following offenses as forms of discrimination that may be within or outside of Title IX when the act is based upon the Complainant’s actual or perceived membership in a protected class.

• Sexual Exploitation, defined as: non-consensual sexual abuse or exploitation of another or such behavior that does not otherwise constitute sexual harassment or another specified behavior under this policy. Examples of Sexual Exploitation include, but are not limited to:
  • Non-consensual use of electronics to capture, reproduce, or share images, video, or audio of a sexual nature without consent of parties involved, including the making or posting of revenge pornography;
  • Public indecency or exposing genitals to others without consent;
  • Engaging in voyeurism (observing another when privacy would be reasonably expected, such as watching private sexual activity or viewing another person’s nudity) without consent.
  • Prostituting another person or engaging in sex trafficking

• Causing or attempting to cause the incapacitation of another person (through alcohol, drugs, or any other means) for the purpose of compromising that person’s ability to give consent to sexual activity, or for the purpose of making that person vulnerable to non-consensual sexual activity
• Misappropriation of another person’s identity on apps, websites, or other venues designed for dating or sexual connections
• Forcing a person to take an action against that person’s will by threatening to show, post, or share information, video, audio, or an image that depicts the person’s nudity or sexual activity
• Knowingly soliciting a minor for sexual activity or creation, possession, or dissemination or child pornography
• Threatening or causing physical harm, extreme verbal, emotional, or psychological abuse, or other conduct which threatens or endangers the health or safety of any person;
• Discrimination, defined as actions that deprive, limit, or deny other members of the community of educational or employment access, benefits, or opportunities, including disparate treatment;
• Intimidation, defined as implied threats or acts that cause an unreasonable fear of harm in another.

Violation of any other Barnard policies may constitute a Civil Rights Offense when a violation is motivated by actual or perceived membership in a protected class, and the result is a discriminatory limitation or denial of employment or educational access, benefits, or opportunities.[4]

[1]  This definition of hostile environment is based on Federal Register / Vol. 59, No. 47 / Thursday, March 10, 1994: Department of Education Office for Civil Rights, Racial Incidents and Harassment Against Students At Educational Institutions Investigative Guidance.  

[2]  Including sexual orientation and sex stereotypes.

[3] Implicitly or explicitly.

[4] Barnard College maintains various policies and associated response procedures related to student and employee conduct. The Director of Nondiscrimination and Title IX will refer appropriately to other College offices and processes when an alleged violation does not meet the threshold for action under this policy or is not related to protected status.

Under the College’s Code of Academic Freedom and Tenure “all officers of instruction and all officers of administration while giving instruction are entitled to freedom in the classroom in discussing their subjects and . . . they are entitled to freedom in research and in the publication of its results.” Similarly, students are encouraged to openly express their views and opinions.

While not all conduct can be shielded by claims of academic freedom or freedom of expression, the College is committed to encouraging meaningful, candid discussion in the classroom and in other academic settings and recognizes that there can be a tension between the need for frank and open discussion and the right of individuals to be free from injury caused by harassment.

Harassment must be distinguished from behavior that, even though unpleasant or disconcerting, is appropriate to the carrying out of certain instructional, advisory, or supervisory responsibilities of education or employment. Instructional responsibilities require appropriate latitude for pedagogical decisions concerning the topics discussed and methods used to draw students into discussion and full participation. Similarly, supervisory responsibilities require appropriate latitude for decisions concerning the methods of fulfilling institutional and work related obligations. Therefore, in determining whether alleged conduct constitutes harassment, it is necessary to examine all of the relevant information available, including the nature of the conduct and the context in which the alleged incidents occurred.

Actual or apparent authority that employees may have over a student is a strong factor in finding that certain types of conduct constitute sexual harassment. This can be so even if a student has not complained about the conduct, does not show signs of being harassed, or fails to file a complaint of harassment.

Complaints of sexual harassment of students, including alleged consensual relationships, will be carefully evaluated in the context of the unique relationship and responsibility that faculty, administrators, and other College employees have to students or other employees.

Acts of alleged retaliation should be reported immediately to the Director of Nondiscrimination and Title IX for prompt follow up. Barnard College will take all appropriate and available steps to protect individuals who fear that they may be subjected to retaliation. Barnard and any member of Barnard’s community are prohibited from taking or attempting to take adverse action by intimidating, threatening, coercing, harassing, or discriminating against any individual for the purpose of interfering with any right or privilege secured by law or policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this policy and procedure.

Filing a complaint within the Nondiscrimination and Harassment Resolution Process could be considered retaliatory if those charges could be applicable under the Formal Title IX Grievance Process, when the Nondiscrimination and Harassment Process charges are made for the purpose of interfering with or circumventing any right or privilege provided afforded within the Formal Title IX Grievance Process that is not provided by the Nondiscrimination and Harassment Process. Therefore, Barnard reviews all complaints carefully to ensure this does not happen, and to assure that complaints are tracked to the appropriate process for the circumstances.

The exercise of rights protected under the First Amendment 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 grievance proceeding under this policy and procedure does not constitute retaliation, provided that a determination regarding responsibility, alone, is not sufficient to conclude that any party has made a materially false statement in bad faith.

Any person who knowingly files a false claim of discrimination or harassment will be in violation of this policy and will be subject to the appropriate disciplinary process.

In compliance with the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act) the College records and reports certain information about campus safety, including the number of incidents of certain crimes on or near campus, some of which constitute sex and gender-based misconduct investigated under these procedures. The Director of Nondiscrimination and Title IX works in collaboration with Public Safety to ensure such incidents are captured for statistical reporting purposes while protecting the identity of the victim of such crimes. These notifications may include the classification and location of the reported crime but do not identify the students involved. The Clery Act also requires the College to issue a “timely warning” when it receives a report of certain crimes that pose a serious or continuing threat to the community. The College may disclose aggregate information regarding incidents investigated and related outcomes. Such reports will not contain identifying information.